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An Ombudsman Scheme for Canada*

Published online by Cambridge University Press:  07 November 2014

Donald C. Rowat
Donald C. Rowat*
Affiliation:
Carleton University
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Extract

There has been considerable discussion recently in the English-speaking world about the office of Ombudsman, or complaints commissioner, in the Nordic countries. The present paper first explains the need for the office, and shows how it meets this need. We then deal with arguments that have been raised against transplanting the institution to other countries, consider some problems regarding its functions and powers, and finally discuss the specific problem of its application to Canada.

Briefly stated, the argument for the Ombudsman scheme derives from the fact that all democratic countries in the twentieth century have experienced a shift from the laissez-faire to the positive state. The accompanying tremendous growth in the range and complexity of government activities has brought with it the need to grant increasing powers of discretion to the executive side of government; and as Dicey has warned us, “Wherever there is discretion, there is room for arbitrariness.” It is quite possible nowadays for a citizen's rights to be accidentally crushed by the vast juggernaut of the government's administrative machine. In this age of the welfare state, thousands of administrative decisions are made each year by governments or their agencies, many of them by lowly officials; and if some of these decisions are arbitrary or unjustified, there is no easy way for the ordinary citizen to gain redress.

Type
Articles
Information
Canadian Journal of Economics and Political Science/Revue canadienne de economiques et science politique , Volume 28 , Issue 4 , November 1962 , pp. 543 - 556
Copyright
Copyright © Canadian Political Science Association 1962

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Footnotes

*

A revised version of the paper presented under the title of “The Nordic Public Defenders” at the annual meeting of the Canadian Political Science Association in Hamilton, June 9, 1962. The author would like to express his appreciation to the Canada Council for a Senior Research Fellowship and a short-term grant, during the tenure of which he gathered information for this paper.

References

1 See Lord Shawcross in Preface to The Citizen and the Administration (London, 1961), xiii Google Scholar; referred to as the Whyatt Report, after its Director of Research, Sir John Whyatt.

2 Kersell, John E., Parliamentary Supervision of Delegated Legislation (London, 1960), 149.Google Scholar

3 It may be of interest to report that after my article on this subject appeared in MacLean's magazine (Jan. 7, 1961), I became a kind of unofficial Ombudsman myself, and received complaints from all across Canada, some complete with frighteningly complicated documentation. A few of these were obviously from cranks, others were unfounded, but some seemed worthy of further investigation. (Similarly, after the Danish Ombudsman had given a series of lectures and was interviewed on television in Britain, he began receiving complaints of maladministration in Britain! )

4 See my “Finland's Defenders of the Law,” Canadian Public Administration, IV, no. 3, 09, 1961, 316–25Google Scholar, and no. 4, Dec, 1961, 412–15.

5 Figures for Denmark and Sweden are given in Bent Christensen, “The Danish Ombudsman,” and Jagerskiold, Stig, “The Swedish Ombudsman,” University of Pennsylvania Law Review, vol. 109, no. 8, 06, 1961, pp. 1105 and 1085 CrossRefGoogle Scholar; and for Finland, in my article, “Finland's Defenders,” 414.

6 Wold, Terje, “The Norwegian Parliament's Commissioner for the Civil Administration,” Journal of the International Commission of Jurists, II, no. 2 (Winter, 1959; Spring-Summer, 1960), 24.Google Scholar

7 Abel, Albert S., “In Search of a Basic Policy,” Canadian Public Administration, V, no. 1, 03, 1962, 68.Google Scholar

8 The 1961 bill is reprinted in the Whyatt Report, Appendix B. Under Sec. 18 the commissioner may take action with respect to any decision, recommendation, act or omission where he finds that it: (a) appears to have been contrary to law; or (b) was unreasonable, unjust, oppressive, or improperly discriminatory, or was in accordance with a rule of law or a provision of any enactment or a practice that is or may be unreasonable, unjust, oppressive, or improperly discriminatory; or (c) was based wholly or partly on a mistake of law or fact; or (d) was wrong; or (e) involved the exercise of a discretionary power for an improper purpose or on irrelevant grounds or on the taking into account of irrelevant considerations or where reasons should have been given for the decision. These provisions remained unchanged in the 1962 bill.

9 Pedersen, I. M., “The Parliamentary Commissioner: A Danish View,” Public Law, CXXIV, no. 1, Spring, 1962, 18.Google Scholar

10 Ibid.

11 See Jagerskiold, , “Swedish Ombudsman,” 1089.Google Scholar

12 Bexelius, Alfred, “The Swedish Institution of the Justitieombudsman,” International Review of Administrative Sciences, XXVII, no. 3, 1961, 245.Google Scholar

13 “In Search of a Basic Policy,” 71.