1993 Legislative Session: 2nd Session, 35th Parliament
The printed version remains the official version.
MR. GARY MICHAEL FARRELL-COLLINS
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
1 In this Act "authority" means an authority set out in the Schedule and includes members and employees of the authority.
2 (1) The Lieutenant Governor shall, on the recommendation of the Legislative Assembly, appoint as an officer of the Legislature a Labour Ombudsman to exercise the powers and perform the duties assigned to the Labour Ombudsman under this Act.
(2) The Legislative Assembly shall not recommend a person to be appointed Labour Ombudsman unless a special committee of the Legislative Assembly has unanimously recommended to the Legislative Assembly that the person be appointed.
3 (1) The Labour Ombudsman shall be appointed for a term of 6 years and may be reappointed in the manner provided in section 2 for further 6 year terms.
(2) The Labour Ombudsman shall not hold another office or engage in other employment.
4 (1) The Labour Ombudsman shall be paid, out of the consolidated revenue fund, a salary equal to the salary paid to the chief judge of the Provincial Court of British Columbia.
(2) The Labour Ombudsman shall be reimbursed for reasonable travelling and out of pocket expenses necessarily incurred by the Labour Ombudsman in discharging duties.
5 (1) Subject to this section, the Pension (Public Service) Act applies to the Labour Ombudsman.
(2) A Labour Ombudsman who retires, is retired or removed from office after at least 10 years' service shall be granted an annual pension payable on or after attaining age 60.
(3) Where a Labour Ombudsman who has served at least 5 years is removed from office due to physical or mental disability, section 19 of the Pension (Public Service) Act applies and is entitled to a superannuation allowance commencing the first day of the month following the Labour Ombudsman's removal.
(4) Where a Labour Ombudsman who has served at least 5 years dies in office, section 20 of the Pension (Public Service) Act applies and the surviving spouse is entitled to a superannuation allowance commencing the first day of the month following the death.
(5) Where calculating the amount of a superannuation allowance under this section each year of service as Labour Ombudsman shall be counted as 1 1/2 years of pensionable service.
(6) Subsection (5) does not apply to the calculation under section 6 (5) of the Pension (Public Service) Act.
6 (1) The Labour Ombudsman may at any time resign the office by written notice to the Speaker of the Legislative Assembly or to the Clerk of the Legislative Assembly if there is no Speaker or if the Speaker is absent from the Province.
(2) On the recommendation of the Legislative Assembly, based on cause or incapacity, the Lieutenant Governor shall, in accordance with the recommendation,
(a) suspend the Labour Ombudsman, with or without salary; or
(b) remove the Labour Ombudsman from office.
(a) the Labour Ombudsman is suspended or removed;
(b) the office of Labour Ombudsman becomes vacant for a reason other than by operation of paragraph (f); or
(c) the Labour Ombudsman is temporarily ill or temporarily absent for another reason the Lieutenant Governor shall, on the recommendation of the Legislative Assembly, appoint an acting Labour Ombudsman to hold office until
(d) the appointment of a new Labour Ombudsman under section 2;
(e) the end of the period of suspension of the Labour Ombudsman;
(f) the expiry of 30 sitting days after the commencement of the next session of the Legislature; or
(g) the return to office of the Labour Ombudsman from a temporary illness or absence, whichever occurs first.
(4) When the Legislature is not sitting and is not ordered to sit within the next 5 days the Lieutenant Governor in Council may suspend the Labour Ombudsman from the office, with or without salary, for cause or incapacity, but the suspension shall not continue in force after the expiry of 30 sitting days.
7 (1) Where
(a) the Labour Ombudsman is suspended or removed; or
(b) the office of Labour Ombudsman becomes vacant for a reason other than by operation of subsection (2) (c), when the Legislature is sitting but no recommendation under section 2 or 6 (3) is made by the Legislative Assembly before the end of that sitting or before an adjournment of the Legislature exceeding 5 days, or
(c) the Labour Ombudsman is suspended or the office of Labour Ombudsman becomes vacant when the Legislature is not sitting and is not ordered to sit within the next 5 days; or
(d) the Labour Ombudsman is temporarily ill or temporarily absent for another reason, the Lieutenant Governor in Council may appoint an acting Labour Ombudsman.
(2) The appointment of an acting Labour Ombudsman under subsection (1) terminates
(a) on the appointment of a new Labour Ombudsman under section 2;
(b) at the end of the period of suspension of the Labour Ombudsman;
(c) immediately after the expiry of 30 sitting days after the day on which the appoint was made;
(d) on the appointment of an acting Labour Ombudsman under section 6 (3); or
(e) on the return to office of the Labour Ombudsman from a temporary illness or absence, whichever occurs first.
8 (1) The Labour Ombudsman may, in accordance with the Public Service Act, appoint employees necessary to enable the Labour Ombudsman to perform duties.
(2) For the purposes of the application of the Public Service Act to this section, the Labour Ombudsman shall be deemed to be a deputy minister.
(3) The Labour Ombudsman may make a special report to the Legislative Assembly where the Labour Ombudsman believes the
(a) amounts and establishment provided for the office of the Labour Ombudsman in the Estimates; or
(b) services provided to the office by the Government Personnel Services Division are inadequate to enable the Labour Ombudsman to fulfil duties.
9 (1) Before beginning to perform the duties, the Labour Ombudsman shall take an oath before the Clerk of the Legislative Assembly that the person will faithfully and impartially exercise the powers and perform the duties of the office, and that the person will not, except where permitted by this Act, divulge any information received by the person under this Act.
(2) A person on the staff of the Labour Ombudsman shall, before the person begins to perform duties, take an oath before the Labour Ombudsman that the person will not, except where permitted by this Act, divulge any information received under this Act, and for the purposes of this subsection the Labour Ombudsman is a commissioner for taking affidavits for British Columbia.
(3) The Labour Ombudsman and every person on the Labour Ombudsman staff shall, subject to this Act, maintain confidentiality in respect of all matters that come to their knowledge in the performance of their duties under this Act.
(4) Neither the Labour Ombudsman nor a person holding an office or appointment under the Labour Ombudsman shall give or be compelled to give evidence in a court or in proceedings of a judicial nature in respect of anything coming to their knowledge in the exercise of duties under this Act, except to enforce powers of investigation, compliance with this Act or with respect to a trial of a person for perjury.
(5) An investigation under this Act shall be conducted in private unless the Labour Ombudsman considers that there are special circumstances in which public knowledge is essential in order to further the investigation.
(6) Notwithstanding this section, the Labour Ombudsman may disclose or authorize a member of the Labour Ombudsman's staff to disclose a matter that, in the Labour Ombudsman's opinion, is necessary to
(a) further an investigation;
(b) prosecute an offence under this Act; or
(c) establish grounds for the Labour Ombudsman's conclusions and recommendations made in a report under this Act.
10 (1) The Labour Ombudsman, with respect to a matter of administration, on a complaint or on the Labour Ombudsman's own initiative, may investigate
(a) a decision or recommendation made;
(b) an act done or omitted; or
(c) a procedure used by an authority that aggrieves or may aggrieve a person.
(2) The powers and duties conferred on the Labour Ombudsman may be exercised and performed notwithstanding a provision in an Act to the effect that
(a) a decision, recommendation or act is final;
(b) no appeal lies in respect of it; or
(c) no proceeding or decision of the authority whose decision, recommendation or act it is shall be challenged, reviewed, quashed or called into question.
(3) The Legislative Assembly or any of its committees may at any time refer a matter to the Labour Ombudsman for investigation and report and the Labour Ombudsman shall
(a) subject to any special directions, investigate the matter referred so far as it is within the Labour Ombudsman's jurisdiction; and
(b) report back as the Labour Ombudsman thinks fit, but sections 22 to 25 do not apply in respect of an investigation or report made under this subsection.
11 (1) This Act does not authorize the Labour Ombudsman to investigate a decision, recommendation, act or omission
(a) in respect of which there is under an enactment a right of appeal or objection or a right to apply for a review on the merits of the case to a court or tribunal constituted by or under an enactment, until after that right of appeal, objection or application has been exercised in the particular case or until after the time prescribed for the exercise of that right has expired; or
(b) of a person acting as a solicitor for an authority or acting as counsel to an authority in relation to a proceeding.
(2) The Labour Ombudsman may investigate conduct occurring prior to the commencement of this Act.
(3) Where a question arises as to the Labour Ombudsman's jurisdiction to investigate a case or class of cases under this Act, the Labour Ombudsman may apply to the Supreme Court for a declaratory order determining the question.
12 (1) A complaint under this Act may be made by a person or group of persons.
(2) A complaint shall be in writing.
(3) Notwithstanding any enactment, where a communication written by or on behalf of a person confined in a federal or Provincial correctional institution or to a hospital or facility operated by or under the direction of an authority, or by a person in the custody of another person for any reason, is addressed to the Labour Ombudsman, it shall be mailed or forwarded immediately, unopened, to the Labour Ombudsman by the person in charge of the institution, hospital or facility in which the writer is confined or by the person having custody of the person; and a communication from the Labour Ombudsman to such a person shall be forwarded to that person in a like manner.
13 The Labour Ombudsman may refuse to investigate or cease investigating a complaint where in the Labour Ombudsman's opinion
(a) the complainant or person aggrieved knew or ought to have known of the decision, recommendation, act or omission to which the Labour Ombudsman's complaint refers more than one year before the complaint was received by the Labour Ombudsman;
(b) the subject matter of the complaint primarily affects a person other than the complainant and the complainant does not have sufficient personal interest in it;
(c) the law or existing administrative procedure provides a remedy adequate in the circumstances for the person aggrieved, and if the person aggrieved has not been availed of the remedy, there is no reasonable justification for the person's failure to do so;
(d) the complaint is frivolous, vexatious, not made in good faith or concerns a trivial matter;
(e) having regard to all the circumstances, further investigation is not necessary in order to consider the complaint; or
(f) in the circumstances, investigation would not benefit the complainant or person aggrieved.
14 (1) If the Labour Ombudsman investigates a matter, notification shall be made to the authority affected and any other person considered appropriate to notify in the circumstances.
(2) The Labour Ombudsman may at any time during or after an investigation consult with an authority to attempt to settle the complaint, or for any other purpose.
(3) Where before the Labour Ombudsman has made a decision respecting a matter being investigated the Labour Ombudsman receives a request for consultation from the authority, the Labour Ombudsman shall consult with the authority.
15 (1) The Labour Ombudsman may receive and obtain information from the persons and in the manner considered appropriate, and in the Labour Ombudsman discretion may conduct hearings.
(2) Without restricting subsection (1), but subject to this Act, the Labour Ombudsman may
(a) at any reasonable time enter, remain on and inspect all of the premises occupied by an authority, converse in private with any person there and otherwise investigate matters within the Labour Ombudsman's jurisdiction;
(b) require a person to furnish information or produce a document or thing in the person's possession or control that relates to an investigation at a time and place the Labour Ombudsman specifies, whether or not that person is a past or present member or employee of an authority and whether or not the document or thing is in the custody or under the control of an authority;
(c) make copies of information furnished or a document or thing produced under this section;
(d) summon before the Labour Ombudsman and examine on oath any person who the Labour Ombudsman believes is able to give information relevant to an investigation, whether or not that person is a complainant or a member or employee of an authority, and for that purpose may administer an oath; and
(e) receive and accept, on oath or otherwise, evidence the Labour Ombudsman considers appropriate, whether or not it would be admissible in a court.
(3) Where the Labour Ombudsman obtains a document or thing under subsection (2) and the authority requests its return, the Labour Ombudsman shall within 48 hours after receiving the request return it to the authority, but the Labour Ombudsman may again require its production in accordance with this section.
16 Where it appears to the Labour Ombudsman that there may be sufficient grounds for making a report or recommendation under this Act that may adversely affect an authority or person, the Labour Ombudsman shall inform the authority or person of the grounds and shall give the authority or person the opportunity to make representations, either orally or in writing at the discretion of the Labour Ombudsman, before deciding the matter.
17 Where the Attorney General certifies that the entry on premises, the giving of information, the answering of a question or the production of a document or thing might
(a) interfere with or impede the investigation or detection of an offence;
(b) result in or involve the disclosure of deliberations of the Executive Council; or
(c) result in or involve the disclosure of proceedings of the Executive Council or a committee of it, relating to matters of a secret or confidential nature and that the disclosure would be contrary or prejudicial to the public interest, the Labour Ombudsman shall not enter the premises and shall not require the information or answer to be given or the document or thing to be produced, but shall report the making of the certificate to the Legislative Assembly not later than in the next annual report.
18 (1) Subject to section 17, a rule of law that authorizes or requires the withholding of a document or thing, or the refusal to disclose a matter in answer to a question, on the ground that the production or disclosure would be injurious to the public interest does not apply to production of the document or thing or the disclosure of the matter to the Labour Ombudsman.
(2) Subject to section 17 and to subsection (4), a person who is bound by an enactment to maintain confidentiality in relation to or not to disclose any matter shall not be required to supply any information to or answer any question put by the Labour Ombudsman in relation to that matter, or to produce to the Labour Ombudsman any document or thing relating to it, if compliance with that requirement would be in breach of the obligation of confidentiality or nondisclosure.
(3) Subject to section 17 but notwithstanding subsection (2), where a person is bound to maintain confidentiality in respect of a matter only by virtue of an oath under the Public Service Act or a rule of law referred to in subsection (1), the person shall disclose the information, answer questions and produce documents or things on the request of the Labour Ombudsman.
(4) Subject to section 17, after receiving a complainant's consent in writing, the Labour Ombudsman may require a person described in subsection (2) to, and that person shall, supply information, answer any question or produce any document or thing required by the Labour Ombudsman that relates only to the complainant.
19 (1) Subject to section 18, a person has the same privileges in relation to giving information, answering questions or producing documents or things to the Labour Ombudsman as that person would have with respect to a proceeding in a court.
(2) Except on the trial of a person for perjury or for an offence under this Act, evidence given by a person in proceedings before the Labour Ombudsman and evidence of the existence of the proceedings is inadmissible against that person in a court or in any other proceeding of a judicial nature.
20 (1) A person examined under section 15 (2) (d) is entitled to the same fees, allowances and expenses as if the person were a witness in the Supreme Court.
(2) Where a person incurs expenses in complying with a request of the Labour Ombudsman for production of documents or other information, the Labour Ombudsman may in the Labour Ombudsman's discretion reimburse that person for reasonable expenses incurred that are not covered under subsection (1).
21 Where the Labour Ombudsman decides not to investigate or further investigate a complaint, or where at the conclusion of an investigation the Labour Ombudsman decides that the complaint has not been substantiated, the Labour Ombudsman shall as soon as is reasonable notify in writing the complainant and the authority of that decision and the reasons for it and may indicate any other recourse that may be available to the complainant.
22 (1) Where, after completing an investigation, the Labour Ombudsman believes that
(a) a decision, recommendation, act or omission that was the subject matter of the investigation was
(i) contrary to law;
(ii) unjust, oppressive or improperly discriminatory;
(iii) made, done or omitted pursuant to a statutory provision or other rule of law or practice that is unjust, oppressive or improperly discriminatory;
(iv) based in whole or in part on a mistake of law or fact or on irrelevant grounds or consideration;
(v) related to the application of arbitrary, unreasonable or unfair procedures; or
(vi) otherwise wrong;
(b) in doing or omitting an act or in making or acting on a decision or recommendation, an authority
(i) did so for an improper purpose;
(ii) failed to give adequate and appropriate reasons in relation to the nature of the matter; or
(iii) was negligent or acted improperly; or
(c) there was unreasonable delay in dealing with the subject matter of the investigation, the Labour Ombudsman shall report the opinion and the reasons for it to the authority and may make the recommendation considered appropriate.
(2) Without restricting subsection (1), the Labour Ombudsman may recommend that
(a) a matter be referred to the appropriate authority for further consideration;
(b) an act be remedied;
(c) an omission or delay be rectified;
(d) a decision or recommendation be cancelled or varied;
(e) reasons be given;
(f) a practice, procedure or course of conduct be altered;
(g) an enactment or other rule of law be reconsidered; or
(h) any other steps be taken.
23 (1) Where the Labour Ombudsman makes a recommendation under section 22, the Labour Ombudsman may request that the authority notify the Labour Ombudsman within a specified time of the steps that have been or are proposed to be taken to give effect to the Labour Ombudman's recommendation, or if no steps have been or are proposed to be taken, the reasons for not following the recommendation.
(2) Where, after considering a response made by an authority under subsection (1) the Labour Ombudsman believes it advisable to modify or further modify the recommendation, he shall notify the authority of the recommendation as modified and may request that the authority notify the Labour Ombudsman of the steps that have been or are proposed to be taken to give effect to the modified recommendation, or if no steps have been or are proposed to be taken, of the reasons for not following the modified recommendation.
24 (1) If within a reasonable time after a request by the Labour Ombudsman has been made under section 23 no action is taken that the Labour Ombudsman believes adequate or appropriate, the Labour Ombudsman may, after considering any reasons given by the authority, submit a report of the matter to the Lieutenant Governor in Council and, after that, may make such report to the Legislative Assembly respecting the matter as considered appropriate.
(2) The Labour Ombudsman shall attach to a report under subsection (1) a copy of the recommendation and any response made to the Labour Ombudsman under section 23, but the Labour Ombudsman shall delete from the recommendation and from the response any material that would unreasonably invade any person's privacy, and may in the Labour Ombudsman's discretion delete material revealing the identity of a member, officer or employee of an authority.
25 (1) Where the Labour Ombudsman makes a recommendation pursuant to section 22 or 23 and no action that the Labour Ombudsman believes adequate or appropriate is taken within a reasonable time, the Labour Ombudsman shall inform the complainant of the recommendation and make such additional comments as considered appropriate.
(2) The Labour Ombudsman shall in every case inform the complainant within a reasonable time of the result of the investigation.
26 Except as provided in this Act, a person is not entitled as of right to a hearing before the Labour Ombudsman.
27 Proceedings of the Labour Ombudsman shall not be challenged, reviewed or called into question by a court, except on the ground of lack or excess of jurisdiction.
28 (1) Proceedings do not lie against the Labour Ombudsman or against a person acting under the authority of the Labour Ombudsman for anything the Labour Ombudsman may in good faith do, report or say in the course of the exercise or purported exercise of duties under this Act.
(2) For the purposes of any Act or law respecting libel or slander,
(a) anything said, all information supplied and all documents and things produced in the course of an inquiry or proceedings before the Labour Ombudsman under this Act are privileged to the same extent as if the inquiry or proceedings were proceedings in a court; and
(b) a report made by the Labour Ombudsman and a fair and accurate account of the report in a newspaper, periodical publication or broadcast is privileged to the same extent as if the report of the Labour Ombudsman were the order of a court.
29 (1) The Labour Ombudsman may in writing delegate to any person or class of persons any of the Labour Ombudsman's powers or duties under this Act, except the power
(a) of delegation under this section;
(b) to make a report under this Act; and
(c) to require a production or disclosure under section 18 (1).
(2) A delegation under this section is revocable at will and does not prevent the exercise at any time by the Labour Ombudsman of a power so delegated.
(3) A delegation may be made subject to terms the Labour Ombudsman considers appropriate.
(4) Where the Labour Ombudsman by whom a delegation is made ceases to hold office, the delegation continues in effect so long as the delegate continues in office or until revoked by a succeeding Labour Ombudsman.
(5) A person purporting to exercise power of the Labour Ombudsman by virtue of a delegation under this section shall, when requested to do so, produce evidence of the Labour Ombudman's authority to exercise the power.
30 (1) The Labour Ombudsman shall report annually on the affairs of the Labour Ombudman's office to the Speaker of the Legislative Assembly, who shall cause the report to be laid before the Legislative Assembly as soon as possible.
(2) The Labour Ombudsman, where the Labour Ombudsman considers it to be in the public interest or in the interest of a person or authority, may make a special report to the Legislative Assembly or comment publicly respecting a matter relating generally to the exercise of duties under this Act or to a particular case investigated by the Labour Ombudsman.
31 A person commits an offence who,
(a) without lawful justification or excuse, intentionally obstructs, hinders or resists the Labour Ombudsman or another person in the exercise of powers or duties under this Act;
(b) without lawful justification or excuse, refuses or intentionally fails to comply with a lawful requirement of the Labour Ombudsman or another person under this Act;
(c) intentionally makes a false statement to or misleads or attempts to mislead the Labour Ombudsman or another person in the exercise of powers or duties under this Act; or
(d) violates an oath taken under this Act.
32 The provisions of this Act are in addition to the provisions of any other enactment or rule of law under which
(a) a remedy or right of appeal or objection is provided; or
(b) a procedure is provided for inquiry into or investigation of a matter, and nothing in this Act limits or affects that remedy, right of appeal or objection or procedure.
33 (1) The Legislative Assembly may on its own initiative or on the recommendation of the Lieutenant Governor in Council make rules for the guidance of the Labour Ombudsman in the exercise of powers and performance of the Labour Ombudsman's duties.
(2) Subject to this Act and any rules made under subsection (1), the Labour Ombudsman may determine own procedures and the procedure for the members of the Labour Ombudsman's staff in the exercise of the powers conferred and the performance of the Labour Ombudsman's duties imposed by this Act.
34 The Lieutenant Governor in Council may by order add authorities to the Schedule.
35 This Act comes into force by regulation of the Lieutenant Governor in Council.
1 Ministries of the Province.
2 A person, corporation, commission, board, bureau or authority who is or the majority of the members of which are, or the majority of the members of the board of management or board of directors of which are,
(a) appointed by an Act, minister, the Lieutenant Governor in Council;
(b) in the discharge of their duties, public officers or servants of the Province; or
(c) responsible to the Province.
3 A corporation the ownership of which or a majority of the shares of which is vested in the Province.
5 Regional districts.
6 The Islands Trust established under the Islands Trust Act.
7 Schools and boards as defined in the School Act.
8 Universities as defined in the University Act.
9 Institutions as defined in the College and Institution Act.
10 Hospitals and boards of management of hospitals as defined in the Hospital Act.
11 Governing bodies of professional and occupational associations that are established or continued by an Act.
The purpose of this Act is to establish the office of labour ombudsman for British Columbia. The labour ombudsman is appointed by the Lieutenant-Governor on recommendation of the Legislature following the unanimous recommendation of its committee. The labour ombudsman is given power to investigate matters relating to the administrative acts of authorities that are listed in the Schedule. The Act does not give the labour ombudsman power to reverse or vary a decision of an authority but the labour ombudsman may recommend to the authority that it change its procedures so as to give more efficient and fair service to the public. The labour ombudsman must report to the Legislature annually and is empowered to publicize findings of the Office of the Labour Ombudsman.
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