Administrative law – Workers compensation – Benefits – Federal and provincial legislation – Judicial review – Jurisdiction of Citizens’ Representative – Ombudsman – Jurisdiction
Newfoundland (Citizens’ Representative) v. Newfoundland (Minister of Environment and Labour),  N.J. No. 257, Newfoundland and Labrador Supreme Court – Trial Division, July 20, 2004, Russell J.
The WHSC Act provided for payment of benefits to spouses of workers killed on the job. Prior to January 1, 1993, the WHSC Act provided that these benefits would cease should the dependent spouse remarry. The WHSC Act was amended in 1993 to allow a surviving dependent spouse whose benefits had been discontinued due to remarriage to reapply for the benefits. Initially, these benefits were not retroactive. A further amendment in 2001 added a provision which provided retroactive compensation to those who were remarried on or after April 17, 1985. This date was specified as it was the date that the equality provisions of the Canadian Charter of Rights and Freedoms came into effect.
In May 2002, the office of the Citizens’ Representative was contacted by a number of widows whose spouses had been killed on the job prior to April 17, 1985 and who had remarried prior to April 17, 1985. Their complaint was that, as a result of section 65.1(1) of the WHSC Act, they were not treated the same way as those who had remarried after April 17, 1985. The office of the Citizens’ Representative commenced an investigation pursuant to section 15 of the Act. The nature of the investigation was “into the potential injustice arising from the relevant provisions of the WHSC Act”. On commencing the investigation, the Citizens’ Representative provided notice to the provincial Crown and the Workplace Health, Safety and Compensation Commission. The Crown did not comply with the investigation and took the position that, as the matter was currently being addressed by the Human Rights Commission, it would await the decision of the Commission prior to taking any further steps. The Crown argued that the Citizens’ Representative had no jurisdiction to look into the matter as the question was before a “court or tribunal” as provided in section 19(d) of the Act. The Citizens’ Representative made an application to the court for a declaration that it had jurisdiction under section 15 of the Act to investigate the complaint.
The court held that the provisions of the Act should receive a liberal construction and interpretation that best ensures the attainment of the objects of the Act. Section 15 of the Act stated:
The Citizens’ Representative may, on a written complaint or on his or her own initiative, investigate a decision or recommendation made, including a recommendation made to a minister, or an act done or omitted, relating to a matter of administration in or by a department or agency of the government … where a person is or may be aggrieved.
The court reviewed the decision of the Supreme Court of Canada in British Columbia Development Corporation v. Friedmann (Ombudsman),  1 W.W.R. 193 where it was stated, at 207:
Read as a whole, the Ombudsman Act of British Columbia provides an efficient procedure through which complaints may be investigated, bureaucratic errors and abuses brought to light and corrective action initiated.
Although the enabling statute was to be given a broad and liberal interpretation, the Supreme Court of Canada in Friedmann outlined the role of the ombudsman as follows, at 543:
In short, the powers granted to the Ombudsman allow him to address administrative problems that the courts, the legislature and the executive cannot effectively resolve.
The Crown argued that what the Citizens’ Representative was seeking to investigate was not a decision or a recommendation, act or omission by a department or agency relating to a matter of administration. Instead, the Citizens’ Representative was seeking to investigate section 65.1(1) of the WHSC Act itself and this was not a matter of the administration in or by a department or agency of the government and therefore not within the jurisdiction of the Citizens’ Representative set out in section 15 of the Act. The court agreed with this argument, noting that the Supreme Court of Canada in Friedmann said that a “matter of administration” encompasses everything engaged in by a governmental authority in the furtherance of governmental policy. The court found that it was unable to conclude that questioning the validity of the legislation itself was the same as taking steps in furtherance of governmental policy. In the result, the court held that the Citizens’ Representative did not have jurisdiction to conduct the investigation.
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