Focus: New ombudsman on the scene (Law Times)

Focus: New ombudsman on the scene (Law Times)

July 4, 2016

4 July, 2016

Paul DubĂ© is walking in the hallway of his 10th floor Bay Street office when an older man wearing a plaid shirt suddenly approaches him. “Excuse me, sir, are you the ombudsman?” the man eagerly asks. “I have a case here.”

Yamri Taddese
Law Times
July 4, 2016

Paul Dubé is walking in the hallway of his 10th floor Bay Street office when an older man wearing a plaid shirt suddenly approaches him. “Excuse me, sir, are you the ombudsman?” the man eagerly asks. “I have a case here.”

Dubé, who is indeed Ontario’s newest watchdog, tells the man he will speak to him shortly. Since January, the ombudsman’s office has been getting complaints about everything from welfare denial from municipalities to delayed snow removal. That’s because Dubé is the first ombudsman in this province to have expanded powers to oversee municipalities along school boards and universities.

He says it’s “a dream job,” and he feels everything he’s previously done has been preparing him for this role. Dubé’s predecessor, the outspoken André Marin, publicly fought for the expanded powers the ombudsman’s office now finally enjoys. But the quest to bring municipalities, school boards, and universities under the ombudsman’s oversight predates Marin, Dubé says.

“It wasn’t just important for my predecessor, it was important to the Ontario ombudsman since 1975,” he says, while sitting in a conference room adorned with portraits of all six of Ontario’s former ombudsmen

“The first ombudsman, Arthur Maloney, when he opened this office in 1975 realized that he was getting a lot of complaints about municipalities,” Dubé adds. “I think every ombudsman since has lobbied for the expansion of the jurisdiction.”

Since Jan. 1, when the enactment of Bill 8 broadened the provincial watchdog’s jurisdiction, Dubé says his office has received more than 1,500 complaints about municipalities. But the only official investigation he’s so far launched is over procurement procedures in Brampton, Ont. The topic of news coverage for years, the Brampton matter is “labour intensive” with a lot of data to go through, Dubé says.

“We’re looking at it as a systemic investigation,” Dubé says of the Brampton file. “At one point last year, the city council asked us to come and look at things, but it was a broad request and we’re not actually responding to that broad request,” he adds.

The large scope of the review requested was “a red flag for us . . . a trigger that maybe there may be a systemic issue there,” Dubé also says

If a municipal issue that arose before Jan. 1 was still ongoing on that date, Dube’s office would investigate it. But there have been some concerns that the provincial ombudsman’s expanded jurisdiction would mean municipal accountability officers are no longer relevant.

“Bill 8 effectively renders moot the role of municipally appointed accountability officers,” wrote David Potts, city solicitor for Ottawa, in a paper last year for a continuing professional education presentation. Potts included a disclaimer in his presentation that he was making the statements in his personal capacity and not as a representative of the city of Oshawa

“A municipality that might otherwise be inclined to appoint one of the various accountability officers under Part V.1 of the Municipal Act, 2001 may now be disinclined to do so in light of the provincially appointed Ombudsman’s ultimate jurisdiction over the subject matter of the municipality accountability officer,” Potts also said. “Double oversight with municipal oversight subordinated to second place is a disincentive for municipal investment in these accountability officers.”

But the ombudsman says he is in fact encouraging municipalities to appoint their own accountability officers so that he does not have to step in. He’d like his office to be the “last resort,” he says. Dubé’s office would also not get involved in matters that could first be appealed to the Ontario Municipal Board. If a complaint is regarding a decision of the OMB, the ombudsman will investigate to make sure the right procedures were followed instead of scrutinizing the substance of findings, Dubé also says.

Still, with every change, there’s resistance, Dubé says, adding he’d like to assure municipalities that his office isn’t there to “name and shame” them. With every investigation, municipalities will get enough notice, an opportunity to be heard, and detailed reasons for any conclusions, Dubé says.

“If the complaint is found to have no merit, what we’re doing is validating your processes,” he continues. “Either we will validate your practices or we’ll give you constructive feedback in a fair and balanced manner.”

After two five-year terms, Marin left the ombudsman’s office unwillingly, and he’s launched a lawsuit against the office and the province for wrongful dismissal.

Marin’s blunt approach during his tenure sometimes rubbed people the wrong way. Near the end of his second term, the social media-savvy Marin asked his Twitter followers to “make some noise” about his dismissal.

Dubé’s approach, early on at least, seems to be less adversarial. He says he wants the agencies under his jurisdiction to be more comfortable with the investigative process. “What I like to do in those situations is . . . kind of bring down the tension and reduce the apprehension, and explain to the heads of these bodies that this can be a win-win-win situation,” Dubé says

He also won’t be tweeting regularly from the ombudsman office’s Twitter account.

“This office is not about me; this is not a one-man show,” he says

Mary Flynn-Guglietti, municipal lawyer at McMillan LLP, says the ombudsman’s new powers over municipalities “puts the light of day on things that are not easily accessible

“The whole idea of what he’s supposed to be doing is he’s supposed to go and look at things nobody else is looking at,” she adds.

Flynn-Guglietti says she does worry, however, about the ombudsman’s office getting overwhelmed with complaints as a result of these new powers. “I just don’t know how many more complaints they’re going to get. How big is this office going to get?” she says.

Dubé says his office of 87 staff is getting an additional 57 heads as a result of his expanded jurisdiction. The office, he says, hires quite a number of lawyers who can assist in early resolution of matters.

The ombudsman’s office can compel staff at agencies to co-operate with its investigation. Dubé says he expects that co-operation even before a formal notice of investigation is sent out.

“We think that our act is clear in that regard that everybody we oversee has an obligation to co-operate,” he says. “If we need it, we have powers to compel the production of documents. But, you know, really, this is a collaborative process. This is not an adversarial approach.”

There’s also “no template” as to which city staff may be called upon to speak when the ombudsman is investigating a matter, according to Dubé.

The first taxpayer’s ombudsman, Dubé, who hails from New Brunswick, worked as a criminal defence lawyer in Dalhousie before moving on to jobs in legal aid and the federal government. His career has largely centred around working with people with economic disadvantages.

He says coming from a small town and watching his father, who is also a lawyer, help farmers and lumberjacks, sometimes with no pay, motivated him to work with vulnerable clients.

“He [my father] said, ‘I’ve been fortunate in life and I have a duty to pay it forward.’ So that was ingrained in me at a young age,” he says, adding the emphasis on access to justice at the University of Windsor’s law school also shaped his career.

When he articled at Ogilvy Renault, Dubé says he learned that a life in big law didn’t stimulate him. “I didn’t feel like I was making that big a difference,” he says, adding the ombudsman’s office keeps him on the path of helping people without the litigation.

“This is just a fantastic, fantastic opportunity to be an agent of positive change for everybody in Ontario,” he says.