Last week, Health Minister Terry Lake announced a move to hand the problem-plagued firing of eight health researchers over to the ombudsperson for an investigation.
Any thoughts in government about that referral being a formality that could be accomplished briskly in time to take some of the heat off question periods next week has faded. A Liberal-NDP legislature committee met Wednesday and released a letter from new Ombudsperson Jay Chalke. It is 10 detailed pages of serious concerns and reservations about whether his office is the right one to probe the issue further.
A Liberal-NDP legislature committee met Wednesday and released a letter from new Ombudsperson Jay Chalke. It is 10 detailed pages of serious concerns and reservations about whether his office is the right one to probe the issue further.
They were enough to stop the committee from doing much of anything, other than agree to meet again next week. The reluctant ombudsperson might eventually be seized with the thorny issue, but it's going to take an extraordinary amount of manoeuvring to get all Chalke's concerns addressed.
Here are some of his qualms:
The office works in private. Chalke said ombudsperson investigations are strictly private; it's a hallmark of the office. He noted great public interest in the firing issue and said many want to see a public investigation.
That's not going to happen if his office handles it. "I appreciate there are other processes available which are more public ... the committee will need to determine the approach that is most appropriate."
Impediments to getting facts. He said the inability of the previous investigation (an independent lawyer's review last year) to compel information is precisely why the government is seeking another more formal look. But he said officials bound by confidentiality don't have to answer his questions or produce evidence on demand.
The confidentiality requirements trump the ombudsperson's investigatory powers. That's such a serious impediment that he wants an urgent legislative amendment to give the office broader powers to compel witnesses. He specifically urged the committee not to refer the issue unless the government agrees to make the change.
He also expressed concern about the protocol for access to cabinet documents and noted some of the employees with confidentiality requirements arising from later settlements would have to be released from those strictures.
Overlap. The information and privacy commissioner has already investigated some aspects of the firings related to how data were being handled. The auditor general is planning to look at other aspects.
So Chalke wants to limit any investigation to avoid duplication with the other statutory officers. And he warned against any artificially tight timeline, given he might have to wait for the conclusion of litigation or arbitration involving some of those fired.
Money. It would have a significant impact on the resources of his office and involve dedicated investigators, records staff and a significant legal budget. If the committee refers the firings to him, he's obligated by law to take up the job.
But he wants time to come up with a cost estimate for all the extra work, and he wants an increase in his budget to cover it all. Anything less would mean deferring help for vulnerable clients.
Unanimity. Chalke wants any referral from the committee to be unanimous. A split vote would lead to the potential appearance of politicization of the office. The committee of six Liberals and four New Democrats has a good record of working together and has produced relatively non-partisan unanimous reports in the past. But the NDP has been insistent to date that a public inquiry is needed, not an ombudsperson's review. If they hold to that line, it would make a unanimous referral unlikely.
Overall, it's not a picture of someone keen to start their first big case. Particularly the first case that's ever been directly sent by government to the ombudsperson in the 35-year history of the office.
He might get still get it, in any event. The attorney general got Chalke's letter and in remarkably short time (one day) issued a 10-point rebuttal to his concerns. That suggests the government will be pressing ahead.
But Chalke has gone to the maximum extent possible to ensure that if he gets the job, it's on his terms.
