On July 8, 2014, the Ontario government reintroduced Bill 8, Public Sector and MPP Accountability and Transparency Act, 2014.1 Bill 8 proposes amendments to various statutes including the Ombudsman Act (Act).
The proposed amendments to the Act in Bill 8 would significantly extend the jurisdiction of the provincial Ombudsman over the affairs of Ontario universities.
Purpose of the Bill
The stated purpose of Bill 8 is to "build a more transparent and responsible government that is accountable to all Ontarians"2 and to strengthen accountability and oversight by expanding the role of the Ontario Ombudsman.
According to John Milloy, the minister of government services when the bill was first introduced, the jurisdiction of the Ontario Ombudsman is being broadened to serve as "a fresh pair of eyes" when someone feels the system is working against them, and to "[take] a look across the line" to promote consistency in the application of the Ombudsman's role across sectors such as universities, municipalities and health.3
Will the proposed amendments to the Act add any actual value for universities or potential complainants?
Some Potential Implications of the Amendments
The proposed amendments to the Act under Bill 8, as they affect universities, raise at least three key areas for concern.
The Ontario Confederation of University Faculty Associations (OCUFA) has commented that the "new powers [of the Ontario Ombudsman] might allow the Ombudsman to interfere in core areas of academic freedom, such as grading and course design."
Bill 8's proposed amendments would give the Ontario Ombudsman authority to:
- investigate any issue for which there has been no internal appeal function; and
- review decisions that were made by a university's designated ombudsman or appeal body.
This means the Ontario Ombudsman may have authority over decisions made by the university on issues such as:
- course design by a faculty member;
- grading of assignments and examinations;
- whether a student should be granted an extension to write an exam or assignment;
- whether a student should have permission to return early from an academic suspension;
- whether a student should be exempted from program requirements if completed in another institution; and
- whether a course, grade or notation should be removed from a student's academic record.
Bill 8 would add to the Act a section 30, which is arguably a measure to curtail the Ontario Ombudsman's jurisdiction as it affects academic freedom. The proposed section 30 reads: "In exercising his or her authority under this Act with respect to universities, the Ombudsman shall consider the application of the principles of academic freedom within universities" (emphasis added).
However, the proposed wording of section 30 is too vague to provide the necessary protections. For instance, section 30 does not describe the context in which the Ontario Ombudsman would consider the application of principles of academic freedom or state whether the Ombudsman must consult with universities.
Impact on university resources
Universities already have internal appeal processes to address many of the complaints and concerns raised by students, faculty and staff. Many of the university's decisions are also reviewable by the courts on an application for judicial review. Bill 8 proposes to add yet another layer of review by the Ontario Ombudsman.
Section 14(4) of the Actwould be amended to delay the Ontario Ombudsman's powers to investigate a decision, recommendation or omission of the university until the university's own appeal process is exercised or the deadline for an internal appeal has passed. This means that even when the university has decided that a matter has been dealt with to its finality, the Ontario Ombudsman can supersede the university's authority and review the matter, if so requested. The university will have to expend further resources to respond to the Ombudsman's review, and this undermines the university's final word on the matter.
One can imagine a situation where a student challenges the curriculum of a course, believing it does not reflect all sides of a particular issue or debate. After exhausting the university's review and appeal processes, and assuming a decision is rendered that is unfavourable to the student, the student could then bring this complaint to the Ontario Ombudsman. In addition to taking more time and creating more expense for the university, a decision by the Ontario Ombudsman may also further politicize and complicate an issue the university is best placed to deal with.
Finally, the proposed changes to the Act would make it possible for the Ombudsman to investigate student complaints on grounds otherwise not considered "reviewable" by the university (such as curriculum design).
Universities defined as public sector bodies
A university would be defined as a "public sector body" since it would be an entity to which the Act applies under section 13. Universities are considered independent of government. Making the term "university" synonymous with "public sector body" may lend credence to the argument that a university is not independent of government but an arm's-length branch of government, to which public funding is given and there is government oversight over all university decisions. This has potentially serious implications for future constitutional challenges involving universities.
The second reading of Bill 8 has not yet been scheduled. In the
meantime, all stakeholders who may be affected by the potential
impact of Bill 8 should be mindful of the proposed reach of the
Ontario Ombudsman, with one key question in mind: Will the benefit
really outweigh the cost of yet another oversight body for
1. R.S.O. 1990, c. O.6.
2.Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl, 1st Sess, No. 4 (8 July 2014), at 89.
3.Ontario, Legislative Assembly, Official Records for 9 April 2014.
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