Administrative law – Judicial review – Ombudsman – Jurisdiction – Privative clauses
Smith v. Alberta (Ombudsman),  A.J. No. 688, Alberta Court of Queen’s Bench, May 29, 2003, Lee J.
In 1998, the Small Power Research and Development Act and Regulations were enacted by the Alberta Government to provide the authority to allocate to an eligible power production facility the capacity to produce electrical energy. Smith was granted approval for an initial allocation for a 30 megawatt power project in November 1989. In 1992, the Government enacted amendments to the Act and amended the deadline when the Minister could make final allocations of capacity. Smith did not obtain the required approvals by the deadline date and, instead, submitted a formal request for a new initial allocation to the Minister. This request was denied. Smith then complained to the Ombudsman on the basis that the Department of Energy unfairly administered Smith’s application for the Small Power Research Allocation. The Ombudsman conducted an investigation and then provided Smith with a letter stating that the administrative actions of the Department were fair. Smith filed an Originating Notice seeking an Order in the nature of certiorari or mandamus, or a declaration, that the Ombudsman’s decision was an error, and sought to have the matter referred back to the Ombudsman for rectification.
The court examined the issue of its role in reviewing a recommendation issued by the Ombudsman. The court noted that the Ombudsman is a creature of statute whose mandate was set out in the Ombudsman Act, R.S.A. 2000, c. 0-8. The Ombudsman was appointed pursuant to the Act as an officer of the Alberta legislature with the mandate to investigate “any decision or recommendation made, including any recommendation made to a Minister, or any act done or omitted, relating to a matter of administration affecting any person or body of persons …”. The Ombudsman does not have any remedial authority and is only entitled to issue recommendations. The court noted that the privative clause in the Act was strong and provided direction to the court on the extent of the court’s role in judicial reviews of the actions of the Ombudsman. Specifically, section 24 of the Act provided that:
No proceedings of the Ombudsman shall be held bad for want of form and, except on the ground of lack of jurisdiction, no proceedings or decision of the Ombudsman shall be challenged, reviewed, quashed or called in question by any court.
After reviewing the privative clause, the court held that the only issue to be considered on this application was whether the Ombudsman lacked jurisdiction to take any of the actions it did in this case. The court noted that the Ombudsman had conducted an investigation, formed an opinion and notified the complainant, concerning the result of the investigation. The court reviewed the evidence before the Ombudsman and noted that the conclusions drawn by the Ombudsman were at least somewhat rational and reasonable in the circumstances. The court further noted that ordering the Ombudsman to reconsider its decision would be of limited or no value since the Ombudsman only had the power to issue recommendations and these recommendations did not affect any party’s legal rights. In the result, Smith’s application was dismissed as the court found that there had been no lack of jurisdiction on the part of the Ombudsman with respect to this matter.
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