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Court reminds Nova Scotia it is bound by rule of law in decision on ombudsman’s document request

Nova Scotia's court of appeal is reminding the province that it is bound by the rule of law after a clash between the government and the provincial ombudsman's office. File Photo

The Nova Scotia Court of Appeal has taken the province to task over the government’s refusal to hand over unredacted documents requested by the provincial ombudsman and challenging that office’s authority.

At the centre of the court’s decision is Nova Scotia ombudsman William Smith’s move to launch an investigation into the actions of Adult Protection Services (APS) to determine whether it mishandled the treatment of a man in its care.

The man, referred to as A.B. throughout the decision for privacy reasons, has both mental and physical health issues.

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Complaints of neglect and a frustrated ombudsman

The court decision, written by Justice Jamie Saunders, states that between 2011 and 2016, A.B. lived in a family home under the care of his older brother, C.D.

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In 2011 and September 2016, complaints were made to APS concerning A.B.’s welfare.

On Sept. 25, 2016, the RCMP responded to the home and found A.B. confined in a room, with no electricity or running water in the house, according to the court decision.

A court order was sought and approved that would authorize Randy Delorey, Nova Scotia’s minister of health, and the health department to provide A.B. with service and care. The court had found that A.B. was in need of “protection and incapable of caring for himself by reason of mental infirmity” and that C.D. was a danger to A.B.

A.B. was eventually placed into a facility in October 2016.

It’s at that point, after receiving a complaint by phone, that the ombudsman’s office stepped in. The office asked the health department to produce any and all files involving A.B., but the health department refused.

What followed was a yearlong back and forth between the two sides that saw the health department maintain the ombudsman did not have jurisdiction to require the production of the documents the office had requested.

Once Smith indicated his investigation would focus on an allegation that APS did not “follow up in a timely and appropriate manner when handling A.B.’s file,” resulting in A.B. suffering harm, the government said the documents could not be disclosed without consent.

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It’s a position the court did not look at favourably.

“That stance was obviously meaningless because A.B. did not have the capacity to give consent, nor would his official guardian (whose identity is redacted) agree to provide it,” Saunders writes, with Justice David Farrar and Justice Cindy Bourgeois concurring.

Eventually, the health department handed over a series of heavily redacted documents. But Smith objected, saying there wasn’t enough information in the documents, including the identity of officials and staff involved in the matter.

The department refused to hand the information over, citing the province’s Freedom of Information and Protection of Privacy (FOIPOP) Act and the Personal Health Information (PHI) Act and arguing the ombudsman couldn’t override those pieces of legislation.

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As a result, Smith took the province to court.

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Following the rule of law

The court concluded that the ombudsman “was well within his authority to commence an investigation” and that the office’s jurisdiction “entitles him to require full disclosure of the information he demanded from the Minister as part of his investigation.”

The court also disagreed with the health department’s use of FOIPOP and PHI in an attempt to keep information from Smith.

The decision also takes the province to task for the health department’s attempts to make the ombudsman disclose the purpose of his request for documents, the identity of the person who had complained to the ombudsman’s office and the details of the complaint.

“I wish to make it clear that there is no obligation whatsoever upon the Ombudsman to divulge the name of the complainant, or any information which might tend to identify the complainant,” Saunders’ decision reads.

 “Requiring the Ombudsman to ‘give up’ the name of the complainant would be absurd.”

Saunders concludes by writing that Smith’s office was created to hold power to account and provide an independent and impartial review of the province’s departments.

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As a result, the justice has ruled there was nothing improper in Smith asking for unredacted documents.

Saunders concludes his decision by writing that the “Ombudsman’s oversight reminds both government and its bureaucracy that they — like the citizens they serve — are bound by the Rule of Law, and will be held to account for its breach.”

The province said on Wednesday that it had just received the decision and will need to review it.

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