The Yukon Supreme Court had to rule resolving how much access the Yukon ombudsman could expect when investigating complaints made by the public about branches of the territorial government.

A May 30 decision penned by Supreme Court judge Edith Campbell outlined how issues arose during an ombudsman investigation of the family and children services branch (FCS) which operates under the department of Health and Social Services.

The facts in the background of the jurisdictional challenge are not in dispute: The conflict arose as the ombudsman responded to a complaint from the father of a child who alleged that FCS failed to follow its procedures by neglecting to inform him about the risk of violence posed by the new partner of the child’s mother.

FCS had longstanding involvement with the mother and child, and the father claims that FCS’s failure to advise him created safety risks for him and his child.

The ombudsman commenced the investigation in late 2019 and sought documents relating to the complaint. Requests throughout the following months were not answered by the department of Health and Social Services citing sections of the territory’s Child and Family Services Act that mandate when information can be disclosed. The ombudsman was also only permitted to communicate with the relevant government branch through legal council and were told they would require a court order to see the requested documents.

The decision notes that the ombudsman did not object to redacting the names of third parties in the documents. For its part, the territorial government acknowledged that its counsel went too far by insisting that legal counsel be the ombudsman’s only point of contact and concedes there are no grounds for such a position.

After the petition was filed, the parties reached a settlement that allowed the ombudsman to obtain disclosure from FCS on agreed upon terms to pursue its investigation. However, the court still sought to clarify a variety of issues including the power of the ombudsman to demand full disclosure of records from the government branch.

The ombudsman’s petition asks the court to grant three declarations that it argues are necessary for it to fulfill its mandate properly.

The first declaration the ombudsman sought was that its jurisdiction to investigate a government authority includes a right to question the authority directly without the requirement to communicate through legal counsel.

Secondly, the ombudsman wanted it declared that it has the right to unredacted documents except as ordered by the court or specified in sections of the Ombudsman Act dealing with privileged information or the confidential deliberations of the government’s executive council.

The third declaration sought is that the ombudsman’s jurisdiction to investigate complaints related to FCS includes a right to access documents in the possession of the government department or its appointed director and that this right is not precluded by portions of the Child and Family Services Act that outline when information can be shared.

The territorial government opposed the petition and asked the judge to dismiss with the ombudsman to cover their legal costs.

Judge Campbell did not grant the first two requested declarations finding them overly broad among other issues. The judge did grant declaration three, finding that other privacy legislation did not rule out disclosure of information to the ombudsman as permitted in the Ombudsman Act and the Child and Family Services Act. Campbell also ruled that both parties should bear their own legal costs.

“This conclusion does not mean an authority or a person should blindly abide by a disclosure or production request made by the ombudsman. As stated previously, if FCS and the director have concerns with respect to such a request, they should bring them to the ombudsman’s attention for discussion,” the judge’s decision reads.

Campbell also notes the decision doesn’t specify whose responsibility it is to bring a matter to court in case of disagreement and expressed an expectation that both parties would find an efficient way to have the court resolve disputes if necessary.

Contact Jim Elliot at jim.elliot@yukon-news.com