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4 Section 5 of the Act is repealed and the following is substituted: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
EXPLANATORY NOTES
Section 1
(a)  The existing provision is as follows:
2(2) Unless his office sooner becomes vacant, the Ombudsman holds office for ten years
(a)  from the date of his appointment under subsection (1), or
(b)  from the date of his appointment under section 4,
and if otherwise qualified, is eligible to be reappointed.
(b)  New provisions.
Section 2
(a)  The existing provision is as follows:
3(1) On the recommendation of the Legislative Assembly, the Lieutenant-Governor in Council may remove or suspend the Ombudsman from office for cause or incapacity due to illness or any other cause.
(b)  New provision.
(c)  New provision.
Section 3
Consequential amendment.
Section 4
The existing provision is as follows:
5 The Ombudsman may not be a member of the Legislative Assembly and shall not hold any office of trust or profit, other than his office as Ombudsman, or engage in any occupation for reward outside the duties of his office without prior approval in each particular case by the Legislative Assembly or the Lieutenant-Governor in Council when the Legislature is not in session.
Section 5
New provision.
Section 6
(a)  New provision.
(b)  Consequential amendment.
(c)  New provision.
Section 7
(a)  Consequential amendment.
(b)  Consequential amendment.
(c)  New provision.
Section 8
Consequential amendments.
Section 9
Consequential amendment.
Section 10
New provisions.
Section 11
A correction is made.
Chapter Outline Update
1
Strike out subsection 2(2) and substitute the following:
Tenure of Ombudsman2(2)-(2.2)