The Yukon government has opposed granting any of the requests filed by the Ombudsman to the Yukon Supreme Court last month.
Diane McLeod-McKay, Yukon’s Ombudsman and Information and Privacy Commissioner, filed a petition on Dec. 11 after her office was barred from accessing documents related to a child and family services case.
McLeod-McKay’s petition requests a declaration that the Ombudsman’s jurisdiction to investigate authorities may require access to unredacted documents in the possession of the Yukon government.
It also requests declaration that the Ombudsman has jurisdiction to question authorities under investigation without communicating through lawyers. It also requests a recovery of costs.
The Yukon government filed a response to the petition on Jan. 18. The response opposes granting all of the relief set out.
The petition stems from a father’s complaint to the Ombudsman in November 2019, alleging that the territorial government’s family and children’s services branch failed to notify him about a risk of violence associated with the mother’s partner.
An investigator assigned to the complaint attempted over several months to retrieve documentation from the Yukon government regarding the case.
On Dec. 18, 2019, a lawyer representing the government informed the Ombudsman’s office that the Child and Family Services Act (CFSA) prohibits the disclosure of identifying documents without a court order. It said that records needed to be reviewed and redacted to comply with the CFSA.
At the end of December 2019, the requested documents still weren’t made available. The investigator requested an interview to ask some basic questions about the file, to determine whether there were grounds to the father’s complaint and if the requested documents were ultimately required. That request was denied, the petition says.
A month later, the investigator was informed that the requested documents were still being reviewed by government officials. The Ombudsman’s office was promised a formal response after the review had been completed.
On Jan. 31, 2020, the investigator expressed concern that 75 days had passed since the complaint was made. The Ombudsman had intended to pursue an informal case resolution process, which has a deadline of 90 days.
On Feb. 10, the Ombudsman was informed that the Yukon government did not find the discretion to release the documentation without the consent of the persons involved. It continued that consent would be granted if the Ombudsman “narrowed the scope” of the complaint and prepared a requisition to the Supreme Court.
On March 3, McLeod-McKay wrote to Stephen Samis, deputy minister of health and social services. She said the government’s stance was disputing the Ombudsman’s jurisdiction and expressed her opinion that the CFSA provisions don’t block access to the requested documents.
The Ombudsman also sent a Notice to Produce Records with a requested deadline of March 18, 2020.
On March 17, the Ombudsman received a response from a government lawyer requesting that all further correspondence go through legal counsel. They further stated that they wouldn’t be releasing the documents without a court order.
“Without the requested documents, the Ombudsman remained unable to investigate the Complaint and thus continued to be unable to comply with her statutory mandate,” the petition says.
The Ombudsman sent out a second Notice to Produce Records on May 5. The Yukon government said, again, that the documents wouldn’t be released without a court order.
A final attempt was made through direct correspondence to Health and Social Services Minister Pauline Frost. The Ombudsman was again instructed to direct all correspondence to legal counsel.
In her Dec. 11 petition, McLeod-McKay noted that the complaint was still outstanding more than a year after it was made.
The Ombudsman’s office declined request for comment on Jan. 25, advising it would wait for the petition to traverse the court process.
The Yukon government did not respond to request for comment by deadline, but traditionally doesn’t comment on issues before the courts.
Contact Gabrielle Plonka at firstname.lastname@example.org