BILL NO. 116
(as introduced)
4th Session, 61st General Assembly
Nova Scotia
61 Elizabeth II, 2012
Environmental Ombudsman Act
Andrew Younger
Dartmouth East
First Reading: November 5, 2012
Second Reading:
Third Reading:
An Act to Establish the Office
of the Environmental Ombudsman
Be it enacted by the Governor and Assembly as follows:
1 This Act may be cited as the Environmental Ombudsman Act.
(a) "agency" means an agency, board, commission, foundation or corporation established under an enactment that
(ii) is supported by or directs the expenditure of public funds of the Province and is designated by the Governor in Council;
(c) "department" means a department of the Government of Nova Scotia and includes an agency;
(d) "environment" means the components of the earth, and includes
(ii) the layers of the atmosphere,
(iii) organic and inorganic matter and living organisms, and
(iv) the interacting natural systems that include components referred to in subclauses (i) to (iii);
(f) "House" means the House of Assembly;
(g) "minister" means the member of the Executive Council who presides over a department or who is in charge of or responsible for an agency;
(h) "officer" means any official, employee or member of a department.
3 (1) There is hereby established, as an officer of the House, a commissioner for investigations specific to the environment and environmental matters to be called the Environmental Ombudsman.
(2) The Environmental Ombudsman shall be appointed by the Governor in Council.
(3) The Environmental Ombudsman may not be a member of the House and shall not hold any office of trust or profit, other than the office of Environmental Ombudsman, or engage in any occupation for reward outside the duties of the office without prior approval in each particular case by the House or by the Governor in Council when the House is not in session.
(4) Subject to Section 30, the Environmental Ombudsman shall be paid such salary as is determined from time to time by the Governor in Council.
(5) Before entering upon the exercise of the duties of the office, the Environmental Ombudsman shall take an oath to faithfully and impartially perform the duties of the office and to not divulge any information received under this Act except for the purpose of giving effect to this Act.
(6) The Speaker or the Chief Clerk of the House shall administer the oath referred to in subsection (5).
(7) Subject to Section 30, the costs and expenses incurred by the Environmental Ombudsman or in the administration of the Act may be paid from the General Revenue Fund of the Province.
4 (1) Unless the office sooner becomes vacant, the Environmental Ombudsman is to hold office for five years from the date of appointment under Section 3 and, where otherwise qualified, is eligible to be re-appointed.
(2) The Environmental Ombudsman may resign from office by notice in writing addressed to the Speaker of the House or, where there is no Speaker or the Speaker is absent from the Province, to the Chief Clerk of the House.
5 (1) On the recommendation of the House, the Governor in Council may remove or suspend the Environmental Ombudsman from office for cause or incapacity.
(2) When the House is not in session, a judge of the Supreme Court of Nova Scotia may suspend the Environmental Ombudsman from office for cause or incapacity upon an application by the Governor in Council.
(3) Where the Governor in Council makes an application under subsection (2), the practice and procedure of the Supreme Court apply mutatis mutandis to the application.
(4) Where a judge of the Supreme Court suspends the Environmental Ombudsman under subsection (2) that judge shall
(a) request the Governor in Council to appoint a person as an acting Environmental Ombudsman to hold office until the suspension has been dealt with by the House; and
(b) table a report of the suspension within 10 days following the commencement of the next ensuing session of the House.
(5) A suspension under subsection (2) is not to continue beyond the end of the next ensuing session of the House.
6 Notwithstanding subsection 3(5), the Environmental Ombudsman may disclose in a report made under this Act any matters that, in the opinion of the Environmental Ombudsman, are necessary to disclose in order to establish grounds for the conclusions and recommendations in the report.
7 (1) The Environmental Ombudsman may, subject to the approval of the Governor in Council, appoint such assistants and employees as the Environmental Ombudsman considers necessary for the efficient carrying out of functions under this Act.
(2) Before performing any official duty under this Act a person appointed under subsection (1) shall take an oath, to be administered by the Environmental Ombudsman, that the person will not divulge any information received under this Act, except for the purpose of giving effect to this Act.
8 (1) The Environmental Ombudsman, by writing under the Environmental Ombudsman's own signature, may delegate to a person appointed an assistant under subsection 7(1) any of the Environmental Ombudsman's powers under this Act except the power of delegation and the power to make a report under this Act.
(2) A person purporting to exercise power of the Environmental Ombudsman by virtue of a delegation under subsection (1) shall produce evidence of the person's authority to exercise that power when required to do so.
9 For the purpose of this Act, the Environmental Ombudsman is a commissioner under the Public Inquires Act.
(a) judges and justices or to the functions of any court of the Province; and
(b) deliberations and proceedings of the Executive Council or any committee thereof.
11 (1) Subject to subsection (2), where any person is aggrieved or, in the opinion of the Environmental Ombudsman, may be aggrieved, the Environmental Ombudsman, on the written complaint of or on behalf of the person aggrieved or on the Environmental Ombudsman's own motion, may investigate the administration by any department with responsibility for matters reasonably associated with the environment or an officer thereof, of any law of the Province concerning the environment or environmental matters.
(2) Notwithstanding subsection (1), the Environmental Ombudsman may not investigate
(a) any decision, recommendation, act or omission in respect of which there is under any Act a right of appeal or objection or a right to apply for a review on the merits of the case to any court or to any tribunal constituted by or under any Act, whether or not that right of appeal or objection or application has been exercised in the particular case and whether or not any time prescribed for the exercise of that right has expired;
(b) any decision, recommendation, act or omission of any person acting as a solicitor or prosecuting officer for the Crown or acting as counsel for the Crown in relation to any proceeding; or
(c) any complaint filed with or any matter referred to or being investigated by the Ombudsman appointed under the Ombudsman Act.
(3) Where a question arises as to the jurisdiction of the Environmental Ombudsman to investigate a grievance under this Act, the Environmental Ombudsman may apply to the Nova Scotia Court of Appeal for a determination of the question of jurisdiction.
12 (1) Subject to the provisions of this Act, a person may apply by written complaint to the Environmental Ombudsman to investigate a grievance concerning the environment or environmental matters.
(2) Notwithstanding Sections 14, 20 and 21, a committee of the House may refer any petition concerning the environment or environmental matters that is before the committee for consideration or any matter relating to such petition to the Environmental Ombudsman for investigation and report.
(3) Notwithstanding Sections 14, 20 and 21, where a matter has been referred to the Environmental Ombudsman under subsection (2), the Environmental Ombudsman, subject to any special directions of the committee, shall investigate the matter as far as it is within the Environmental Ombudsman's jurisdiction and shall make such report to the committee as the Environmental Ombudsman thinks fit.
(4) Notwithstanding any Act, where a letter written by a person in custody on a charge or after conviction of any offence or by any inmate or patient of any sanatorium or mental hospital is addressed to the Environmental Ombudsman, it shall be forwarded immediately, unopened, to the Environmental Ombudsman by the person for the time being in charge of the place or institution where the writer of the letter is detained or of which the writer is an inmate or patient.
13 Notwithstanding any other Act providing that a decision, recommendation, act or omission is final or that no appeal lies in respect thereof or that no proceeding, decision, recommendation, act or omission of a department or officer thereof is to be challenged, reviewed, quashed or called in question, the Environmental Ombudsman may exercise the powers under this Act.
14 (1) The Environmental Ombudsman, in the Environmental Ombudsman's discretion, may refuse to investigate or may cease to investigate a grievance if
(a) an adequate remedy or right of appeal already exists whether or not the complainant has availed himself or herself of the remedy or right of appeal;
(b) the grievance is trivial, frivolous, vexatious or not made in good faith;
(c) having regard to all the circumstances of the case, further investigation is unnecessary;
(d) the grievance relates to any decision, recommendation, act or omission of which the complainant has had knowledge for more than one year before complaining;
(e) the complainant does not have a sufficient personal interest in the subject-matter of the grievance; or
(f) upon a balance of convenience between the public interest and the person aggrieved the Environmental Ombudsman is of the opinion that the grievance should not be investigated.
(2) Where the Environmental Ombudsman decides not to investigate or to cease to investigate a grievance the Environmental Ombudsman shall inform the complainant and any other interested person of the decision and may state the reasons therefor.
15 Where the Environmental Ombudsman intends to investigate a grievance under this Act, the Environmental Ombudsman shall notify the minister and the chief officer of the department;
16 (1) Every investigation under this Act is to be conducted in private.
(2) Subject to this Act, the Environmental Ombudsman may hear or obtain information from any person and may make inquiries.
(3) The Environmental Ombudsman may hold hearings under this Act but, subject to subsections (4) and (5), no person is entitled as of right to be heard by the Environmental Ombudsman.
(4) Where during an investigation the Environmental Ombudsman is satisfied that there is prima facie evidence that a department or officer thereof administered a law of the Province so as to cause a grievance or to give cause for a grievance, the Environmental Ombudsman shall so advise the minister, the chief officer of the department and the officer causing the grievance and give each an opportunity to be heard.
(5) Where a minister, a chief officer or an officer appears at a hearing under subsection (4), the minister, chief officer or officer, as the case may be, is entitled to counsel.
(6) The Environmental Ombudsman may at any time during or after an investigation consult a minister or chief officer of a department concerned in the matter of the investigation.
(7) Before forming a final opinion on any matter referred to in subsection 20(1), the Environmental Ombudsman shall consult with the minister, when the investigation relates to a department or a recommendation to the minister or when the minister requests.
(8) Where during or after an investigation the Environmental Ombudsman is of the opinion that there is evidence of a breach of duty or misconduct by a department or officer thereof, the Environmental Ombudsman shall refer the matter to the minister and chief officer of the department.
(9) Subject to this Act and any rules made under Section 25, the Environmental Ombudsman may regulate the Environmental Ombudsman's own procedure.
17 (1) Subject to subsections (2) to (7) and Section 18, where the Environmental Ombudsman requests a person who, in the opinion of the Environmental Ombudsman, is able to furnish information relating to a matter being investigated by the Environmental Ombudsman to furnish such information, that person shall furnish that information and produce any documents or papers that, in the opinion of the Environmental Ombudsman, relate to the matter and that may be in the possession or under the control of that person whether or not that person is an officer of a department, and whether or not the documents and papers are in the custody or under the control of that department.
(2) The Environmental Ombudsman may summon and examine on oath
(a) any officer of a department who, in the opinion of the Environmental Ombudsman, is able to give any information referred to in subsection (1);
(c) with the approval of the Attorney General, any other person who, in the opinion of the Environmental Ombudsman, is able to give any information referred to in subsection (1).
(3) The oath referred to in subsection (2) is to be administered by the Environmental Ombudsman.
(4) Subject to subsection (5), where a person is bound by any law or by an enactment to maintain secrecy in relation to, or not to disclose any matter, the Environmental Ombudsman shall not require that person to supply any information or to answer any question in relation to that matter or to produce any document or paper relating to the matter that would be in breach of the obligation of secrecy or non-disclosure.
(5) With the prior consent in writing of the complainant, the Environmental Ombudsman may require a person to whom subsection (4) applies to supply information or answer questions or produce documents or papers relating only to the complainant and that person shall do so.
(6) The rules for taking evidence in the Supreme Court of Nova Scotia apply to evidence given by a person required to give information, answer questions and produce documents or papers under this Act.
(7) Any person required to attend a hearing under this Act is entitled to the same fees, allowance and expenses as if the person were a witness in the Supreme Court.
(8) Except on the trial of a person for perjury, evidence given by any person in proceedings before the Environmental Ombudsman and evidence of any proceeding before the Environmental Ombudsman is not admissible against any person in any court or in any proceedings of a judicial nature.
(9) No person is liable for an offence against any Act by reason of compliance with any requirement of the Environmental Ombudsman under this Act.
18 (1) Where the Attorney General certifies that the giving of any information or the answering of any question or the production of any document or paper may disclose
(a) deliberations of the Executive Council; or
(b) activities of the Executive Council or any member of the Executive Council relating to matters of a secret or confidential nature and would be injurious to the public interest,
the Environmental Ombudsman shall not require the information or answer to be given or the document or paper produced.
(2) Subject to subsection (1), a rule of law that authorizes or requires the withholding of any document, paper or thing, or the refusal to answer any question on the ground that the disclosure of the document, paper or thing, or the answering of the question would be injurious to the public interest, does not apply in respect of any investigation by or proceedings before the Environmental Ombudsman.
19 (1) For the purpose of this Act, the Environmental Ombudsman may enter upon any premises occupied by any department and, subject to Sections 17 and 18, carry out any investigation within the jurisdiction of the Environmental Ombudsman.
(2) Before entering any premises under subsection (1), the Environmental Ombudsman shall notify the chief officer of the department of the intention to enter the premises.
20 (1) Where upon investigation the Environmental Ombudsman is of the opinion that a grievance exists or may exist because a department or officer thereof administered or is administering a law of the Province concerning the environment or environmental concerns
(a) unreasonably, unjustly, oppressively or in a discriminatory manner, or pursuant to a rule of law, enactment or practice that so results;
(b) under mistake of law or fact, in whole or in part;
(e) by using a discretionary power for an improper purpose, or on irrelevant grounds, or by taking irrelevant considerations into account, or by failing to give reasons for the use of a discretionary power when reasons should have been given,
and where the Environmental Ombudsman is of the opinion that
(f) the grievance should be referred to the department or officer thereof for further consideration;
(g) an omission should be rectified;
(h) a decision should be cancelled or rectified;
(i) a practice by reason of which the grievance arose or may arise should be altered;
(j) a law by reason of which the grievance arose or may arise should be reconsidered;
(k) reasons should be given for the use of a discretionary power; or
(l) other steps should be taken as the Environmental Ombudsman may advise,
the Ombudsman shall report the opinion, the reasons therefor and any recommendation to the minister and the chief officer of the department concerned.
(2) Where the Environmental Ombudsman makes a recommendation under subsection (1), the Environmental Ombudsman may request the department to notify him or her within a specified time of the steps it proposes to take to give effect to the recommendations.
(3) Where, after the time stated under subsection (2), the department does not act upon the recommendation of the Environmental Ombudsman, refuses to act thereon or acts in a manner unsatisfactory to the Environmental Ombudsman, the Environmental Ombudsman may send a copy of the report and recommendation to the Governor in Council and may thereafter make a report to the House.
(4) The Environmental Ombudsman shall include with any report made under subsection (3) a copy of any comment made by the department upon the Environmental Ombudsman's opinion or recommendation.
(5) In any report made by the Environmental Ombudsman under this Act, the Environmental Ombudsman shall not make any finding or comment that is adverse to any person unless the Environmental Ombudsman gives that person an opportunity to be heard.
21 (1) Where the Environmental Ombudsman makes a recommendation under subsection 20(1) and the department does not act upon such recommendation to the satisfaction of the Environmental Ombudsman, the Environmental Ombudsman shall inform the complainant of the recommendation and may add any comment.
(2) The Environmental Ombudsman shall in any case inform the complainant in the manner and time the Environmental Ombudsman considers proper of the result of the investigation.
22 No proceeding of the Environmental Ombudsman is void for want of form and, except on the ground of lack of jurisdiction, no proceedings or decisions of the Environmental Ombudsman are to be challenged, reviewed, quashed or called in question in any court.
23 (1) No proceedings lie against the Environmental Ombudsman or against any person holding any office or appointment under the Environmental Ombudsman for any thing the Environmental Ombudsman or the person may do or report or say in the course of the exercise or intended exercise of functions under this Act, unless it is shown the Environmental Ombudsman or the person acted in bad faith.
(2) The Environmental Ombudsman and any person holding any office or appointment under the Environmental Ombudsman may not be called to give evidence in any court or in any proceedings of a judicial nature in respect of any thing coming to the knowledge of the Environmental Ombudsman or the person in the exercise of functions under this Act.
24 (1) The Environmental Ombudsman shall report annually to the House on the exercise of the functions of the Environmental Ombudsman under this Act.
(2) The Environmental Ombudsman, in the public interest or in the interests of a person or department, may publish reports relating generally to the exercise of the functions of the Environmental Ombudsman under this Act or to any particular case investigated by the Environmental Ombudsman, whether or not the matters to be dealt with in the report have been the subject of a report made to the House under this Act.
25 The House may make general rules for the guidance of the Environmental Ombudsman in the exercise of functions under this Act.
(a) without lawful justification or excuse wilfully obstructs, hinders or resists the Environmental Ombudsman or any other person in the exercise of functions under this Act;
(b) without lawful justification or excuse refuses or wilfully fails to comply with any lawful requirements of the Environmental Ombudsman or any other person under this Act;
(c) wilfully makes any false statement to or misleads or attempts to mislead the Environmental Ombudsman or any other person in the exercise of functions of the Environmental Ombudsman or other person under this Act; or
(d) refuses or wilfully fails to comply with subsection 12(4),
is guilty of an offence and on summary conviction is liable to a penalty not exceeding $500.
27 This Act does not affect, abrogate, abridge or infringe or authorize the abrogation, abridgement or infringement of any substantive or procedural right or remedy existing elsewhere or otherwise than in this Act.
28 (1) The Governor in Council may make regulations designating an agency, board, commission, foundation or corporation for the purpose of clause 2(a).
2) The exercise by the Governor in Council of the authority contained in subsection (1) is regulations within the meaning of the Regulations Act.
29 Subsection 11(2) of Chapter 327 of the Revised Statutes, 1989, the Ombudsman Act, is amended by
(a) striking out "or" at the end of clause (a);
(b) striking out the period at the end of clause (b) and substituting "; or"; and
(c) adding the following clause:
(c) any complaint filed with or any matter referred to or being investigated by the Environmental Ombudsman appointed under the Environmental Ombudsman Act.
30 The money required for the purpose of this Act must be paid out of money appropriated for that purpose by the Legislature.
31 This Act has effect on and after January 1, 2013.
This page and its contents published by the Office of the Legislative Counsel, Nova Scotia House of Assembly, and © 2012 Crown in right of Nova Scotia. Created November 5, 2012. Send comments to legc.office@novascotia.ca.
