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A new era for Ontario’s political watchdog

Ombudsman's longer reach could ensnare Oshawa, sources say

By Joel Wittnebel/The Oshawa Express

Ontario’s watchdog may once again be sniffing around at city hall.

On Jan. 1, sweeping new powers legislated under Bill 8 gave the Ontario Ombudsman’s office the ability to now investigate complaints regarding all aspects of municipal governance, from snow removal and waste to the conduct of councillors, and this includes retroactive issues, or complaints about issues that have happened in years past.

In a December press conference, acting ombudsman Barbara Finlay says since she arrived at the office in 2005, she’s seen more than 11,000 complaints turned away because they weren’t in the office’s jurisdiction.

Finlay says she encourages all municipalities to have local complaint mechanisms and that her office should be there as a failsafe.

“We will be there to make sure the local mechanisms work as they should, to step in when they fail or to go where they cannot go,” she said.

What will change under the new system is the scope of what the ombudsman’s office can investigate.

However, what won’t change is which municipalities the office can choose to look into.

Currently, 206 of Ontario’s 444 municipalities use the ombudsman as their investigator, the remaining either choose to hire their own private investigators or employ an integrity commissioner.

However, while encouraging all municipalities to have integrity commissioners or auditor generals, Finlay says it is this “patchwork” system that leads municipalities into bad habits. She says municipalities should not be able to choose who investigates complaints.

“Municipalities should not be able to choose who investigates and who enforces the closed meeting law in their jurisdictions,” she said. “We have seen that too much, unfortunately, in the past – municipalities have engaged in what we call oversight shopping.

“There may be issues around how they choose those (investigators), or ensuring that they all have consistent qualifications and produce proper quality of reviews and reports,” Finlay says.

In Oshawa, one report in particular may already be on the ombudsman’s radar, as sources who wish to remain anonymous have told The Oshawa Express that complaints have already been filed regarding the independent investigation of AG-13-09 by George Rust-D’Eye in 2013.

That report, written by Ron Foster, the city’s former auditor general, accused city staff and city manager Bob Duignan in particular of misleading council on the multi-million dollar land acquisition of 199 Wentworth St. E. for Oshawa’s new consolidated works depot.

Rust-D’Eye, hired as an independent investigator, found no evidence to support Foster’s claims and following an explosive Sept. 3, 2013 council meeting that led to a pair of citizens being arrested, council chose not to renew Foster’s contract.

Mayor John Henry says he is unable to comment on the issue, pointing to ongoing legal concerns, but says there have been talk with the ombudsman’s office about AG-13-09.

“We’ve had conversations with the ombudsman about that in the past and, I’m not going to question the ombudsman’s ability to come back and look at any municipality. Our challenge too is we have ongoing issues still related to those decisions,” Henry says. “In a perfect world, we wouldn’t have problems, but if the public thinks that there’s a challenge, then they always have the opportunity.”

Henry also pointed out that Oshawa has had dealings with the ombudsman’s office, most recently in July 2014, and have always had favourable results. Oshawa is also one of the only 17 municipalities in Ontario that record their closed meetings.

“I’m positive we will continue to receive the great reports that we get back from the ombudsman,” he said.

The mayor also questioned how far back the ombudsman would be able to go, hinting at issues he would like to address.

“I wish I knew how far they could go back because there are a few from maybe 10 years ago that I would like to talk about,” he said.

Troublesome trends

In the latest report from the ombudsman covering the time period of Sept. 1, 2014 to Aug. 31, 2015, the office dealt with 133 complaints related to 61 municipalities. Of the 85 meetings that were reviewed, 16 of them were deemed to be illegal and 40 others included procedural violations.

Municipalities that do not use the ombudsman’s office as their investigator are not included in the report, and Finlay says that currently there is no centralized mechanism for detailing all complaints in the province, meaning some complaints can remain unknown to her office.

“The law will need to be changed,” Finlay says.

The ombudsman’s report also details some concerning trends that have been getting municipalities into trouble.

One such habit is the use of emails by councillors to conduct council business away from the public eye.

“We’ve seen that happen more frequently,” Finlay says.