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CROWN - Ombudsmen

Tuesday, July 09, 2019 @ 8:32 AM  


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Application by the Nova Scotia Office of the Ombudsman for answers to a Stated Case. The applicant investigated the timeliness of the treatment and protection of AB, an adult under the care of Adult Protection Services. AB suffered from physical and mental health issues. A referral was made to Adult Protection Services in 2011. AB was removed from family care, found in need of protection, and placed in a continuing care facility from 2016 onward. During the investigation, the applicant demanded a complete, un-redacted record of AB's involvement and personal health information. The Minister of Health and Wellness refused to provide the material sought. The Minister took the position that the demand was precluded by provisions of the Ombudsman Act and other provincial legislation, the Freedom of Information and Protection of Privacy Act and the Personal Health Information Act, designed to safeguard AB's privacy interests. The applicant requested the Court to answer two Stated Questions. At issue was whether s. 11(2) of the Ombudsman Act precluded the applicant's jurisdiction to investigate the Department of Health and Wellness with respect to their handling of complaints, referrals and care concerning AB. Also at issue was whether the applicant's jurisdiction provided for the production sought.

HELD: Application allowed. The applicant's power, authority and jurisdiction was defined by legislation and broad in nature. The unique and important remedial and watchdog role of the Ombudsman in Canada's constitutional democracy informed the interpretation of the governing legislation. The Ombudsman's legislative responsibilities were achieved by recognizing considerable power to investigate, subpoena, question under oath, compel production, make recommendations, publicly report, and when considered necessary, expose abuse and misconduct. The applicant had clear and unfettered jurisdiction to commence an investigation on his own motion into whether AB was aggrieved. The broad scope of the Ombudsman's jurisdiction entitled him to require full disclosure of the information demanded as a part of his investigation. The Minister's refusal to produce the materials sought thwarted the applicant's investigation and blocked his ability to exercise his statutory authority. Given the comprehensive legislative privacy safeguards governing the applicant's handling of information, there was no provincial privacy legislation that barred the applicant from receiving a complete and un-redacted copy of the materials demanded. The Legislature clearly intended that any perceived disharmony between the Ombudsman Act and other enactments dealing with the custody, protection and disclosure of an individual’s personal and private information would be resolved in favour of the Ombudsman. The Stated Questions were answered accordingly.

Nova Scotia (Office of the Ombudsman) v. Nova Scotia (Attorney General), [2019] N.S.J. No. 254, Nova Scotia Court of Appeal, D.P.S. Farrar, J.W.S. Saunders and C.A. Bourgeois JJ.A., June 12, 2019. Digest No. TLD-July82019006