RE OMBUDSMAN OF ONTARIO AND THE QUEEN IN RIGHT OF ONTARIO

RE OMBUDSMAN OF ONTARIO AND THE QUEEN IN RIGHT OF ONTARIO

Ontario Court of Appeal, Arnup, Lacourcière and Thorson JJ.A November 14, 1980.

Case Law– Note: This document comes from scanned pages. Therefore you may find some odd words here and there

Administrative law – Ombudsman – Jurisdiction – Power to reinvestigate – Considerations – Ombudsman Act, 1975 (Ont.), c. 42.

Even though the Ombudsman has made his report to the Legislature after investigating a matter, he has jurisdiction in appropriate cases to further investigate or to reinvestigate the matter. Where new evidence has become available since his report, the Ombudsman has jurisdiction to make a further investigation.

[RE Ombudsman of Ontario and Health Disciplines Board of Ontario et al. (1979), 26 O.R. (2d) 105, 104 D.L.R. (3d) 597; Robinson v. Williams [1964] 3 All E.R. 12, refd to]

Appeal – Parties – Standing – Ombudsman’s report putting professional competence and Integrity of land agents In Issue – Land agents have standing to appeal from Judgment declaring Ombudsman’s jurisdiction to reinvestigate matter.

Remedies – Declaratory relief – Availability – Ombudsman seeking declaration (lint he has power to re matter – New evidence available – Minister contesting jurisdiction of Ombudsman to reinvestigate – Declaratory relief appropriate even though Ombudsman ha. not yet decided to reinvestigate – Ombudsman Act, 1975 (Ont.), c. 42, s. 15(5).

Administrative law – Ombudsman – Jurisdiction – Bars – Ombudsman Act, 1975 (Oat.), c. 42, s. 15(4)(a), prohibiting Ombudsman from investigating matter where statute provides for hearing or appeal to tribunal until matter disposed of by tribunal – Royal Commission appointed to report on merits of claims of landowners to compensation – Commission unable to report on claims because landowners withdrew from proceedings – Commission making report accordingly – Matter cannot be reopened before Commission – Ombudsman has jurisdiction to make investigation.

Administrative law – Ombudsman – Jurisdiction – Power to reinvestigate – Ombudsman entering into agreement with Minister regarding resolution of matters investigated by Ombudsman – Agreement not intended to create binding contract – Ombudsman not estopped by agreement from reinvestigating matter.

[The Queen v. Langville (1977), 75 D.L.R. (3d) 124, [1977] 2 F.C. 380, 77 D.T.C. 5086, [1977] C.T.C. 144; Laker Airways Ltd. v. Department of Trade, [1977] 2 All E.R. 182, refd to]

APPEAL from a judgment of Evans C.J.H.C., 26 O.R. (2d) 434, 103 D.L.R. (3d) 117, holding that the Ombudsman of Ontario has power to further investigate a matter previously investigated by him.

Sidney N. Lederman and John A. M. Judge, for appellants, five land agents.
Eric R. Murray, Q.C., and Brian P. Goodman, for Ombudsman of Ontario.
Ian G. Scott, Q.C., for 28 landowners or former landowners.
Robert P. Armstronq, Q,C., for Minister of Housing.
Johnn Collins, for 83 other landowners.

The judgment of the Court was delivered orally by

Arnup J.A.: – This appeal from the judgment of the Chief Justice of the High Court concerns the powers of the Ombudsman of Ontario to investigate certain matters arising from the North Pickering Project of the Ontario Government.

The Ombudsman characterizes the issue as being whether he has power to investigate further the complaints of landowners in connection with the project, some of which the Ombudsman has already investigated and reported upon. Those submitting that the Ombudsman does not have the power he asserts characterize the issue us whether lie has power to reinvestigate the complaints he has already investigated. In essence, they say his powers have been exhausted with respect to those matters. They raise other grounds on which they say the Ombudsman is precluded from doing what he asserts he has power to do. The facts are fully set out at length and with great care by the Chief Justice, and his recitation of those facts is not challenged in this Court. I will not recount those facts again except so far as may be required to show the background of a particular issue raised on the appeal.

The Ombudsman applied to the Supreme Court of Ontario pursuant to s. 15(5) of the Ombudsman Act, 1975 (Ont,), c. 42. He asked the Court to declare his jurisdiction with respect to two questions. These were:

• Determining the jurisdiction of the Ombudsman to reinvestigate or (investigate complaints notwithstanding that he has already delivered a Report pursuant to Section 22 of The Ombudsman Act regarding the subject matter of the said complaints and more particularly in respect of the complaints of some of the Cornier landowners as described in a written agreement between the Minister of Housing and the Ombudsman made October 1st, 1976;
• Determining and declaring whether the said agreement between the Ombudsman and the Minister of Housing would be breached by further investigation of the complaints of some of the former landowners having regard to the conclusion of the Commission of Inquiry Into The Acquisition By The Minister Of Housing Of Certain Lands In The Community of North Pickering that it was unable to consider, recommend and report on the overall merits of the claims for additional compensation by the former landowners.

The motion was brought, alternatively, under Rules 611 and 612.

The learned Chief Justice answered the first question, in the words of the formal judgment, as follows:

1. THIS COURT D0TH ORDER AND DECLARE that the Ombudsman has jurisdiction to exercise his discretion to further investigate certain complaints En’ former landowners affected by the North Pickering Project in respect of which a report has been made to the Ontario Legislature, AND D0TH ORDER AND DECLARE THE SAME ACCORDINGLY.

For reasons which I shall comment upon later, the Chief Justice did not answer the second question and pant. 2 of the formal judgment. l that the application in respect of that question is dismissed.

Paragraph 3 of the formal judgment declares that the agreement between the Minister of Housing and the Ombudsman, made October 1, 1976, is not legally enforceable. 1 shall have occasion to comment later upon the fact that there has been no appeal with respect to paras. 2 or 3 of the formal judgment.

Certain matters, preliminary in nature, were raised in the course of the argument, although not at its outset. The first of these matters was raised by Mr. Scott, who asserted that the five appellants, who were land agents engaged by the Ministry of Housing to negotiate with landowners in the North Pickering area, did not have status to appeal from the judgment of the Chief Justice.

Counsel for those parties had appeared in the Court below and no objection was taken to their doing so. We were all of the view that, since the professional competence, and indeed the integrity, of the appellants, was put in issue by the report of the Ombudsman, the agents did have status to appeal and accordingly we did not call upon counsel for the appellants to deal with this objection.

The secondary preliminary matter raised by the appellants was as to what was called the sixth issue. It was that the learned Chief Justice erred in finding that the declaratory relief requested was appropriate on the facts of the case. The argument was made that since the Ombudsman has not decided that he is, in fact, going to investigate further (or reinvestigate), the question posed by the Ombudsman is at this point hypothetical, and that. In accordance with the practice of the Court, declaratory relief is not granted with respect to hypothetical questions. It was further urged that there are many facts in dispute in this matter and that it is not the practice of the Court to grant declaratory relief when there are facts in dispute.

We did not give effect to this submission and did not call upon other counsel to answer it. In our view, it was entirely appropriate for the Ombudsman, having been put on clear notice that there was additional evidence that might require the exercise of his discretion in favour of conducting some further investigation, to apply to the Court for a declaration of his jurisdiction, particularly in view of the fact that the Minister of Housing had asserted that he had no such jurisdiction. Furthermore, the facts which are relevant to the determination of the precise questions put to the Court are not, in our view, in controversy. Accordingly, this preliminary objection was overruled. It was supported by counsel for the Ministry, but no one else was asked to deal with the matter.

In this connection it is important to point out that the matter did not come before the Chief Justice as one for judicial review but, rather, as I have indicated, as an application made under s. 15(5) of the Ombudsman Act, 1975. In our opinion, s. 15(5) should not be given a narrow or restrictive construction or application. Answers given by the Court in response to an application made under s. 15(5) should be designed to be helpful. The analogy between the ordinary powers of the Court to grant declaratory relief and its power to give advice by way of declaration under s. 15(5) is by no means complete, and at least some different considerations apply to applications made under s. 15(5).

Finally, I record that what was termed by the appellants the fifth issue, which was that the Chief Justice should have found there existed a reasonable apprehension of bias on the part of the Ombudsman, was abandoned at the outset of the argument.

I turn now to what was called the first issue, It was put in these words in the appellants’ statement:

The first issue is whether the learned judge erred In determining that the Ombudsman implicitly has a continuous (unction giving h jurisdiction to further investigate or reinvestigate complaints already the subject of a report delivered by him to the Legislative Assembly pursuant to s. 22 of the Act.

A number of different arguments were made in support of this broad submission. In our view, the question thus raised is the crucial issue in the appeal. Its substance is that in the circumstances of the case the Ombudsman was functus when he had submitted his report to the Legislature. This was said by the appellants to be the Ombudsman’s final report; he could do nothing further. In support of this proposition, reliance was placed upon the decision of this Court in Re Ombudsman of Ontario and Health Disciplines Board of Ontario et al. (1979), 26 O.R. (2d) 105, 104 D.L.R. (3d) 547, in which some useful general observations upon the function of the office of Ombudsman were made by Mr. Justice Morden on behalf of the Court.

We should say at this point that the questions posed in the first issue cannot be determined in the abstract but must be answered against the factual background of the case. It would not be appropriate, in our view, to lay down in definitive terms when the Ombudsman can and when he cannot investigate further a matter in respect of which some investigation has already been made by him.

Reference was made in argument to the language of the Chief Justice in his reasons for judgment where he referred to the judgment of Lord Parker C.J. in Robinson v. Williams, [1964] 3 All E.R. 12, a case dealing with proceedings before Justices in the nature of an application for an affiliation order. There it was said that the Justices had jurisdiction where there was new evidence, in the sense of evidence not called on the previous complaint, even though it was available. The Chief Justice of the High Court then said [at p. 456 O.R., p. 138 D.L.R.]:

If the Ombudsman has the power to further investigate, I find that this latter view is more appropriate. Such power would be limited to his investigation of evidence not previously known to him, whether or not it could have been previously discovered.

We regard this observation as not being directed to the question of jurisdiction but as an observation directed towards how the discretion of the Ombudsman should be exercised in deciding whether or not a further investigation should take place. This view is supported to some extent by what was said by the Chief Justice towards the end of his judgment. in referring to the agreement made on October 1, 1976, between the Ombudsman and the Minister of Housing, a subject to which I shall return, he stated [at p. 458 O.R., p. 141 D.L.R.]:

I am satisfied In these circumstances that the conduct of the Ombudsman an of the landowners has not fettered the Ombudsman’s discretion to investigate. It may very well be a circumstance within the meaning of s-s. 18(1)(b) which the Ombudsman may be obliged to consider before exercising his discretion to further investigate. I cannot direct the Ombudsman how to exercise his discretion. I merely find that the circumstances of this case have not bound or fettered his discretion.

There have been events in the history of this case that have been debated before the Chief Justice and to a lesser extent before us. One is the withdrawal of Mr. Scott from the proceedings before the Royal Commission established in pursuance of the agreement of October 1, 1976, and the explanation for it that he made at the time or shortly thereafter. Another is the statement issued by the former Ombudsman immediately after the report of the Royal Commission. In our view, the Chief Justice was right in treating these matters as water under the bridge. They do not, in our view, go to the question of the jurisdiction of the Ombudsman.

The second issue advanced by the appellants is based on s. 15(4)(a) of the Ombudsman Act, 1975. That section reads as follows:

(4) Nothing in this Act empowers the Ombudsman to investigate any decision, recommendation, act or omission,

1. in respect of which there is, under any Act, a right of appeal or objection, or a right to apply for a hearing or review, on the merits of the Case to any Court, or to any tribunal const by or under any Act, until that right of appeal or objection or application has been exercised in the particular case, or until after any time for the exercise of that, right has expired;

The argument is as follows. Any Act means in this case the Public Inquiries Act, R.S.O. 1970, c. 319, as amended by 1971, Vol. 2, c. 49. That is the Act pursuant to which the Royal Commission was established. Paraphrasing, then, s-s. (4), we reach this result – that the Ombudsman is precluded from investigating a complaint respecting any act or omission of the Ministry of Housing, its servants or agents while, a right to apply to the Royal Commission for a hearing or review on the merits of the case exists.

This argument depends fin its validity upon the continued existence of the Royal Commission. It was asserted that certainly in 1979, when the Ombudsman applied to the Court, it was open to the landowners to submit or re-submit their claims to the Royal Commission. It was further said that since the Royal Commission had not considered, recommended and reported on the merits of the claims (as its appointment required) but rather had reported, in part, its inability to do so because the landowners whose cases had been referred to it had chosen to withdraw from its proceedings, therefore the Commission had not finished its work and was still available to the landowners, even yet, as a tribunal to which they could apply.

We point out that the Royal Commission made its report on December 5, 1977. The application to the Supreme Court of Ontario by the Ombudsman was not launched until July 18, 1979. Assuming, without deciding, that the Royal Commission was a tribunal constituted by or under the Public inquiries Act, 1971 to which, under that Act, a right arose to apply for a hearing or review of the landowners’ rights, we do not accept the submission that s. 15(4)(a) is a bar. We do not accept that the Royal Commission was then subsisting, its task unfinished, when the Ombudsman applied to the Court. Even less so do we accept the submission that even today the Royal Commission subsists and is available for the determination of the matters originally referred to it.

The report made by the Royal Commission does not purport to be anything but final, even though it reported its inability, for the reasons mentioned, to complete all of the assignments given to it by its commission. Furthermore, we do not accept the additional submission made that a formal termination of the existence of the Royal Commission by the Lieutenant-Governor in Council was required. We therefore hold that the Ombudsman was not precluded by s. 15(4)(a) of the Ombudsman Act, 1975, from making a further investigation subsequent to December 6, 1977.

The third issue raised by the appellants is that the Ombudsman, assuming that he would otherwise have had jurisdiction to further investigate the complaints of the landowners, was precluded from doing so by reason of the agreement dated October 1, 1976, made between the Minister of Housing and the Ombudsman, as a result of discussions held both in the presence of and apart from the Select Committee of the Legislature w hic I had been set up to deal with reports of the Ombudsman, commencing with the very report in question in these proceedings.

Counsel for the five land acquisition agents and/or his clients were not expressed to be parties to that agreement but it is said to have been concurred in by counsel on their behalf. In support of the proposition that the agreement precluded any further investigation, reliance was placed by counsel upon The Queen v. Langeville (1977), 75 D.L.R. (3d) 124, [1977] 2 F.C. 380, [1977] C.T.C. 144, and Laker Airways Ltd. v. Department of Trade, [1977] 2 All E.R. 182. The latter case, in particular, contains observations (which are obviously obiter) on the subject of estoppel of Crown officers by reason of acts done by them, in that case by the issue of a licence to the applicant Laker Airways.

Considering all of the circumstances surrounding the making of the agreement mentioned, we do not think it was intended to create a binding contract in the well-known meaning of that word in law. In short, it was not intended to he binding, in the contractual sense, upon each or all of the parties to it. Accordingly, we agree with the Chief Justice that the agreement does not estop or otherwise preclude the Ombudsman from conducting a further investigation. Whatever other consequences may flow from the making of the agreement, upon which the Chief Justice made some observations, is not a matter that, in our view, requires any comment from us.

Mr. Collins asked us not to impugn the integrity of that agreement. I have already observed that, although the Chief Justice commented upon the agreement and its effect or lack of it, he declined to answer the second question put to him. He did declare the agreement to be not legally enforceable and there has been no appeal from that particular declaration.

We therefore agree with the Chief Justice that the powers of the Ombudsman to conduct a further investigation are not in any way hindered in their exercise by the existence of the agreement.

I turn briefly to what was described as the seventh issue, which is based upon whether or not there was in existence new evidence entitling the Ombudsman to conduct a further investigation. In our opinion, it would be an overly technical view to say, for example, that new evidence must relate to claimant C before the case of claimant G can be further investigated. Similarly, we do not think it is appropriate to apply to the Ombudsman the rules that govern a Court as to when new evidence can be introduced and given effect. There was new evidence in the matter. The new facts produced by the Minister in his comments on (or partial answer to) the Ombudsman’s report certainly qualify as being enough to warrant further investigation by the Ombudsman. I repeat in this context what I have said earlier, that it would not be appropriate to lay down in definitive terms the limits of the exercise of discretion of the Ombudsman in all circumstances as to when he can and when he cannot investigate a matter in respect of which some investigation has already been made. We do not think that the further investigation of the Ombudsman is precluded by any lack of new evidence in the sense in which that term should be used when considering the activities of the Ombudsman.

In the result, accordingly, all grounds of appeal fail and the appeal is dismissed.

Mr. Scott and Mr. Collins do not ask for costs. The Ombudsman has asked that we make an order for costs in his favour against the appellants and the Minister of Housing. In the exercise of our discretion, we propose to make the same order as was made in the Court below, and accordingly the appeal will be dismissed without costs.

Appeal dismissed.