BILL 73
An Act to Amend the
Ombudsman Act
Her Majesty, by and with the advice and
consent of the Legislative Assembly of New Brunswick, enacts as follows:
1 Section
2 of the Ombudsman Act, chapter O-5 of the Revised Statutes, 1973,
is amended
(a) by repealing
subsection (2) and substituting the following:
2(2) Unless the office sooner becomes vacant, the Ombudsman holds
office for ten years
(a) from the date of appointment under
subsection (1), or
(b) from the date of appointment under
section 4.
(b) by adding
after subsection (2) the following:
2(2.1) Subject to subsection (2.2), the Ombudsman shall not be eligible
to be reappointed.
2(2.2) The Lieutenant-Governor in Council, on the recommendation of
the Legislative Assembly, may extend the term of the Ombudsman for
a period of not more than six months in order to allow the Ombudsman
to complete an investigation.
2 Section
3 of the Act is amended
(a) by repealing
subsection (1) and substituting the following:
3(1) The Lieutenant-Governor in Council, upon an address in which
two-thirds of the members of the Legislative Assembly concur, may
remove the Ombudsman from office for cause or incapacity due to illness
or other cause.
(b) by adding
after subsection (1) the following:
3(1.1) The Lieutenant-Governor in Council, upon an address in which
a majority of the members of the Legislative Assembly voting concur,
may suspend the Ombudsman, with or without pay, pending an investigation
which may lead to removal under subsection (1).
(c) by adding
after subsection (5) the following:
3(6) Disclosure by the Ombudsman of information which the Ombudsman
is required to keep confidential under this Act shall be grounds for
removal from office under this section.
3 Subsection
4.1(1) of the Act is amended by striking out “subsection 3(1)”
and substituting “subsection
3(1.1)”.
4 Section
5 of the Act is repealed and the following is substituted:
Conflict of interests
respecting Ombudsman
5(1) The Ombudsman shall not be a member of the Legislative Assembly
and shall not hold any other office of trust or profit or engage in
any occupation for reward outside the duties of the office of Ombudsman
without the prior approval in each case by the Legislative Assembly
or the Lieutenant-Governor in Council when the Legislature is not
in session.
5(2) Notwithstanding subsection (1), the
Ombudsman may also hold the office of Child and Youth Advocate.
5 Section
8 of the Act is amended by adding after subsection (2) the following:
8(3) The Ombudsman may share employees and
the cost of such employees with the Office of the Child and Youth
Advocate.
6 Section 9 of the Act is amended
(a) by adding after subsection (1) the following:
9(1.1) Notwithstanding subsection (1), if
the Ombudsman is in a conflict of interest with respect to a matter
referred to the Ombudsman, the Ombudsman may delegate in writing to
any person any power with respect to that matter, including the power
to make a report.
(b) in subsection (2) by
striking out “subsection (1)” and substituting “subsection (1) or
(1.1)”;
(c) by adding after subsection (2) the following:
9(3) The Lieutenant-Governor in Council
may prescribe by regulation circumstances that give rise to a conflict
of interest for the purposes of subsection (1.1).
7 Subsection
12(2) of the Act is amended
(a) in paragraph
(a) by striking out “or” at the end of the paragraph;
(b) in
paragraph (b) by striking out the period at the end the paragraph
and substituting a comma followed by “or”;
(c) by adding
after paragraph (b) the following:
(c) a matter that is being or has been
investigated or reviewed by the Office of the Child and Youth Advocate
or the New Brunswick Human Rights Commission.
8 Section
18 of the Act is amended
(a) by repealing
subsection (1);
(b) by repealing
subsection (4);
(c) by repealing
subsection (5).
9 Section
19 of the Act is repealed.
10 The
Act is amended by adding after section 19 the following:
Access to information
19.1(1) Notwithstanding any other Act or claim of privilege, and subject
to subsection (3), the Ombudsman has a right to all information and
documentation that is necessary to enable the Ombudsman to perform
the duties and exercise the powers under this Act.
19.1(2) Subject subsection (3), if the Ombudsman requests a person to
provide information relating to a matter being investigated by the
Ombudsman and the Ombudsman is of the opinion that the person is able
to provide the information, the person shall provide the information
and produce any documents or papers that, in the opinion of the Ombudsman,
relate to the matter and that may be in the possession or under the
control of the person.
19.1(3) The Ombudsman does not have a right to the following information
or documents:
(a) information or documents that would
identify a person who gives information under section 30 of the Family Services Act;
(b) information or documents that would
identify a person who gives information under subsection 35.1(1) of
the Family Services Act;
(c) information or documents that would
identify a person who makes a report under section 31.1 of the Education Act;
(d) information or documents protected
by a claim of solicitor-client privilege; and
(e) information or documents certified
by the Attorney General as disclosing the following:
(i) the deliberations of the Executive
Council or the proceedings of the Executive Council or a committee
of the Executive Council;
(ii) secret or confidential information;
or
(iii) information that would be injurious
to the public interest.
Confidentiality of information
19.2(1) The Ombudsman, employees of the Office of the Ombudsman and any
person appointed to assist the Ombudsman pursuant to a contract for
professional services shall keep confidential all information and
other matters that come to their knowledge in the exercise of their
duties or functions under this Act, unless required to disclose it
by law or in furtherance of the Ombudsman’s mandate under this
Act.
19.2(2) Notwithstanding subsection (1),
and subject to subsection (3), the Ombudsman may disclose in a report
made under this Act those matters which the Ombudsman considers necessary
to disclose in order to establish grounds for his or her conclusions
and recommendations.
19.2(3) The Ombudsman, employees of the Office of the Ombudsman and any
person appointed to assist the Ombudsman pursuant to a contract for
professional services shall not disclose to any person the following
information, unless the information is disclosed in accordance with
the provisions of the relevant Act:
(a) information in a record maintained
with respect to a pupil that is inaccessible pursuant to subsection
54(3) of the Education Act;
(b) information protected from disclosure
by section 16.1 or 17 of the Mental
Health Act;
(c) information protected by section
91 of the Family Services Act;
(d) information that if disclosed would,
in the opinion of the Minister who holds the information, be detrimental
to the well-being, security, health or care of any person;
(e) information that would identify
a person without the person’s consent; and
(f) information that the Ombudsman does
not have a right of access to under section 19.1.
19.2(4) Failure by an employee to comply with subsection (1) or
(3) is sufficient grounds for dismissal or other disciplinary action
as the Ombudsman considers appropriate.
19.2(5) For the purposes of this section, an employee of the Office of
the Ombudsman includes an employee of the Office of the Child and
Youth Advocate that is shared with the Ombudsman under subsection 8(3).
11 Schedule
A of the Act is amended by repealing section 4 and substituting the
following:
4 District education councils and school
districts established under the Education
Act