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A new watchdog in the workplace

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The Public Sector and MPP Accountability and Transparency Act, 2014 (the “Act”) received Royal Assent on December 11, 2014. The intention of the Act is to strengthen government accountability in a number of areas by amending 16 pieces of legislation in Ontario.

On September 1, 2015, the Act expanded the scope of the powers/authority of the Ontario Ombudsman under the Ombudsman Act to include the 82 school boards in Ontario.  On January 1, 2016, the Act further expanded the Ombudsman Office’s authority to the 444 municipalities and 21 universities in Ontario.

What does this mean for school boards, municipalities and universities?

There is now an additional mechanism by which anyone who is affected by an alleged action or inaction on the part of the organization to make a complaint to the Ombudsman’s Office. Any staff, resident, student, parent, family member or Member of Provincial Parliament may make a complaint to the Ombudsman about school boards, municipalities and universities.

In the workplace investigation context, the expanded jurisdiction of the Ombudsman’s Office means that it can now investigate complaints about the policies and procedures of school boards, municipalities, and universities including the policies pertaining to violence, sexual harassment, human rights and accommodation.

For example, the Ombudsman’s Office may now review complaints such as:

  • Concerns about the handling of allegations of harassment as between municipal council members (where the complaint has not been resolved at the municipal level);
  • A school board not providing appropriate accommodation assistance under its policies for a student’s learning disability;
  • Concerns that a university did not have an appropriate policy in place when investigating allegations of discrimination by a student as against a professor and/or classmates regarding the student’s invisible disability;
  • The adequacy of the procedures available or in effect at a university when investigating a complaint about sexual harassment;
  • That information should have been disclosed to a complainant during a complaint process at a university or school board.

Since its inception in 1975, the Ombudsman’s Office has had jurisdiction over Ontario colleges. As of January 1, 2008 the Ombudsman’s Office has had the authority to review complaints about closed meetings at most municipalities.*

The Ombudsman’s Office does not handle complaints about employment or union issues and is an office of last resort. It will not conduct formal investigations of all of the complaints it receives and many people who complain to the office will be immediately referred back to the organization about which they are complaining to complete the investigative process with a view to resolving the issue. In many instances the organization will have a mechanism in place to deal with the issue, such as its own university Ombudsman. Once the issue has been resolved or completed at the organization level, only then will the Ombudsman’s Office investigate.

If the Ombudsman’s Office decides to investigate a complaint, the organization must cooperate fully and the Ombudsman’s Office does have the power to issue summonses and require evidence under oath. The majority of complaints made to the Ombudsman are resolved quickly and in private, however, the number of complaints made against a particular organization is made public in its Annual Report. There is no public record indicating the number of complaints that were without merit, resolved amicably or even frivolous and vexatious; only a record that the complaints were made. This may mean unwanted attention or scrutiny of your organization or may prompt further complaints.

The best way to avoid complaints to the Ombudsman regarding the policies (including those applicable to violence, harassment, human rights and/ or accommodation) in your school board, municipality or university is to have clear, appropriate, and thorough policies and procedures in place, to know when they are triggered, to follow them and to keep a record of your doing so.

* Some municipalities including the City of Toronto have their own Ombudsman or Investigator who reviews complaints. Only in limited circumstances will the Ontario Ombudsman review complaints about these municipalities.

Andrea Lowes

About the Author: Toronto Employment Lawyer Andrea Lowes conducts workplace investigations into allegations of harassment, bullying, poisoned work environments, and other problematic workplace behaviour. Andrea also assists her clients by providing workplace investigation and human rights training to staff at all levels. Andrea’s practice also includes workplace assessments and reviews.