Canada: On September 1st The Ombudsman Began Taking Complaints About School Boards

As of September 1st, 2015, the Ontario Ombudsman may now take complaints pertaining to the province's 73 school boards. The expansion of the Ombudsman's mandate was granted under the provisions of Bill 8, the Public Sector and MPP Accountability and Transparency Act, 2014. The new law was proclaimed on March 16, 2015.

Bill 8, which has staggered dates for implementation, extended the Ombudsman's scrutiny to the broader public sector. It will enable the Ombudsman to take complaints about municipalities and universities as of January 1, 2016.

Effective September 1st, 2015, anyone with an unresolved concern about a school board, including parents, family members, school staff, trustees, teachers or special interest groups can contact the provincial Ombudsman by using an online complaint form at www.ombudsman.on.ca.1 A complaint can also be filed by phone or e-mail.

Effective September 15, 2015, the Provincial Government appointed Barbara Finlay as the province's acting Ombudsman.

The former Ontario Ombudsman, André Morin, has stated that the Ombudsman is an office of last resort and that issues should be resolved locally, where possible.2 Mr. Morin indicated that school boards should reinforce their own complaint and accountability mechanisms. If a person has not already raised his/her complaint with a school board complaint process, the Ombudsman will refer the individual back to that process.

The Ombudsman has the authority to conduct investigations and make recommendations. Under the Ombudsman Act, these recommendations are not binding. The Ombudsman does not have authority to overturn decisions made by school boards, nor can she issue penalties.

From a school board perspective, the Ombudsman will be able to investigate complaints about the administrative conduct of school boards that have not been resolved by local complaint or appeal processes. These may include concerns about special education supports, school board policies, customer service provided by board staff and other matters within the purview of individual school boards.3

It should be recognized that the Ombudsman has the discretion not to investigate a complaint.4 In exercising her discretion, the Ombudsman may consider, among other things, the age of the complainant, whether the complainant has sufficient personal interest in the subject matter, whether or not there is an alternative remedy for the complaint, if the complaint is considered frivolous or vexatious or if the matter involves a broader public policy issue. Each complaint is assessed on a case-by-case basis to determine if an investigation is warranted.5

Complaint Process

Following the Bill 8 amendments, anyone with an unresolved concern about a school board – including parents and family members, school board staff and trustees, teachers or special interest groups – can contact the Ombudsman by using an online complaint form. The following process will apply to complaints made against school boards:

  • The Ombudsman will assess all complaints and refer them to local school board officials for quick resolution, wherever possible.
  • If local mechanisms are unsuccessful, the Ombudsman may attempt resolution and may contact the school board for more information.
  • If an investigation is necessary, the school board will receive written notice and will be required to provide relevant information and documents.
  • If the Ombudsman makes recommendations, the school board will have a chance to respond before any report is made public.
  • The Ombudsman will follow up on relevant recommendations to ensure they are implemented and have the desired effect.

Under the Ombudsman Act, all school boards are required to co-operate with the Ombudsman's office when responding to a complaint. The Ombudsman has significant investigation powers, including the authority to issue summonses, require evidence under oath or inspect premises. Under the Ombudsman Act, it is an offence to mislead the Ombudsman or obstruct an Ombudsman investigation.

There is no charge to complain to the Ombudsman and a school board that is the subject of a complaint will not be reimbursed for the costs incurred in responding to an investigation.

Under the Ombudsman Act, all complaints, including the identity of the complainant are confidential and investigations are conducted in private.6 However, depending on the nature of the complaint, it may be necessary for a person to consent to being identified to the specific school board so that his/her complaint can be thoroughly reviewed and investigated.

Under Bill 8, section 207 of the Education Act has been amended with respect to school board meetings that are held in private. The new provision requires that a meeting of a school board be closed to the public when the subject matter involves an ongoing investigation under the Ombudsman Act respecting the board.

Of note is the fact that the Bill 8 amendments specifically provide that the Ombudsman is to exercise her authority with respect to school boards in a manner that is consistent with and respectful of the rights and privileges granted under section 93 of the Constitution Act, 1867 and section 23 of the Canadian Charter of Rights and Freedoms . It remains to be seen how complaints involving denominational rights will be resolved.

The Ombudsman is an independent office of the Ontario legislature that resolves and investigates individual and systemic issues relating to the administration of provincial government services and school boards. It handled 23,153 complaints in 2014/2015.

It should be recognized that five other ombudsmen in provincial governments across Canada also oversee school boards.

We understand that since September 1st, there have already been a number of complaints to the Ombudsman's office made against Ontario school boards.

Best Practices

Although the Bill 8 amendments have newly expanded the Ombudsman's powers over school boards, the Act intends for the Ombudsman to be an office of last resort and that issues be resolved locally, wherever possible. Therefore, it is of increased importance that school boards reinforce and utilize their own complaint and accountability mechanisms.

In this regard, we recommend that school boards have detailed and clear complaint or appeal processes in place for parents, students, staff or third party complainants. These complaint procedures should be in writing and fully accessible to the school board community. They should set out internal processes to resolve disputes involving the school board or individual schools.

We also recommend that school boards have designated personnel in place to co-ordinate the response to a concern or complaint received by the Ombudsman's office. The coordinator should be aware of the relevant provisions of the Ombudsman Act, the investigation and disclosure process under the legislation, and the scope and authority of the Ombudsman. This individual should be the contact person for the school board in properly responding to an inquiry from the Ombudsman's office. Ideally, many of the concerns or complaints raised by the Ombudsman can be resolved in a prompt and timely manner.

Where an investigation is necessary, the school board coordinator should review the written notice from the Ombudsman's office and prepare a timely response, which may include the provision of relevant information and/or documents. The coordinator should work in consultation with other school board personnel, including supervisory officers and principals, in organizing the Board's response.

Overall, it is recommended that school boards should have processes and procedures in place to respond to concerns or complaints raised by the Ombudsman's office in a prompt and thorough manner.

Footnotes

1. Ontario Ombudsman, Newsroom, "Ombudsman begins taking complaints about school boards September 1", Press Release, 2015

2. Ibid.

3. Ontario Ombudsman — MUS FAQ, "MUS — Municipalities, Universities and School Boards — Frequently Asked Questions"

4. Ibid.

5. Ibid.

6. Ibid.

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