Nova Scotia Court of Appeal Reaffirms Ombudsman's Authority

On June 12, 2019, while in the process of preparing this report, the Nova Scotia Court of Appeal delivered a compelling decision concerning a question of jurisdiction and access to records involving this Office. More specifically, the decision was in relation to an own motion investigation and a request by the Ombudsman to the Department of Health and Wellness (DHW), to disclose documents from Adult Protection Services (APS).

In late 2016 this Office received information from multiple sources regarding the care and wellbeing of an adult with physical and mental health issues, and the alleged lack of response or undue delay by APS in addressing referrals. The purpose of the own motion investigation was to examine APS's involvement in the matter.

As part of a routine process, this Office sought disclosure of DHW's records involving the individual and their caregiver pursuant to Section 17(1) of the Ombudsman Act. DHW refused to provide the records in full, without redactions. When all attempts at a less formal resolution failed, this Office applied to the Nova Scotia Court of Appeal for a determination of the question of the Ombudsman's jurisdiction to investigate the matter.

The Court of Appeal considered the following two questions:

  1. Does subsection 11(2) of the Ombudsman Act preclude jurisdiction of the Ombudsman from investigating DHW with respect to their handling of complaints, referrals and case concerning AB?
  2. Does the jurisdiction of the Ombudsman, if any, provide for the production of the Record in full from DHW?

In addition to ordering the production of the records in full, which the DHW has since complied with, the judgement provided a clear and sophisticated pronouncement from Nova Scotia's highest Court on the powers and prerogatives of the Ombudsman and has an immediate place in Canadian judicial reports. Not only does it resolve the legal questions with precision, it invokes relevant and instructive history, convention, and Ombudsman practice. It describes accurately and fully endorses the place of Parliamentary Ombudsman services in functional democratic structures and created language uniquely supportive of the Ombudsman's writ.

In a decision replete with supportive language, the Nova Scotia Court of Appeal concluded, "The Ombudsman's authority is a potent force which acts as part ot a system of legislative checks and balances on the proper functioning of our democratic institutions. The Ombudsman's oversight reminds both government and its bureaucracy that they- like the citizens they serve - are bound by the Rule of Law, and will be held to account for its breach."

Case Citation: Nova Scotia {Office of the Ombudsman) v. Nova Scotia {Attorney., General), 2019 NSCA 51