A Path Forward

Background – Why this Action Plan is needed

Background

Why this Action Plan is needed

In March of this year, I published a report calling for the office of the Ombudsman to be legislated, adding my voice and experience to that of the four previous office holders.1 The initial rationale underlying the intent to legislate the office of the Ombudsman remains as valid today as it was when this office was created in June 1998 – perhaps more so. I believe that the arguments to legislate the office are compelling and critical to the long term existence and effectiveness of this office.

However, the Ministerial response to my report, The Case for a Permanent and Independent Ombudsman Office, supported the current governance framework and expressed confidence that the leadership of the Department of National Defence and the office of the Ombudsman will continue to build and improve upon existing processes with the goal of ensuring sound stewardship and efficient use of public resources.2

Despite divergent perspectives, it is clear that the office of the Ombudsman must continue, for the time being, to operate within the current administrative framework. Consequently, a way forward is needed to ensure that the office of the Ombudsman can carry out its mandated duties independently from the management of the Department and the chain of command of the Canadian Armed Forces, which organizations it is mandated to review.

It is not my intention to reiterate the arguments for legislation made in the aforementioned report. Rather, I am taking a practicable approach to functioning within an inherently flawed governance structure.  This action plan seeks flexibilities within existing legislative and policy instruments that will allow the Ombudsman operational independence while respecting the responsibilities and accountabilities of the Deputy Minister.

Governance in the Canadian Federal System – A Primer

In the federal public service, activities necessary for the functioning of government organizations are carried out based on legislative authority. Legislation can vest authorities in ministers, deputy heads of departments, or central agencies. Authorities given to ministers or central agencies can be delegated to deputy heads. In order to get the work done, deputy heads delegate or sub-delegate those authorities to officers within their reporting structures. To ensure that the delegated authorities are appropriately exercised, and the delegate is accountable, policies and internal control procedures are generally established. The ultimate responsibility for the proper exercise of the authorities remains with the office holder in whom the authorities vest - most often the deputy head.

Where the Ombudsman fits

The Ombudsman is appointed by Governor in Council (GiC) to head the office of the DND-CAF Ombudsman, is accountable, and reports directly to the Minister of National Defence.  The reason the office was set up to report to the Minister relates to the importance of independence, specifically that, to be effective, the Ombudsman must be and must be seen to be completely free of any sort of influence from the Department whose decisions he or she reviews.

The office of the Ombudsman operates by Ministerial Directive supported by a Defence Administrative Order and Directive (DAOD).3 These instruments do not have the force of legislation and do not impart either the financial or the human-resource authorities required to manage a government organization. In order to have those authorities, the Ombudsman would have to be established in legislation and have deputy head status.

While the Ministerial Directives specify both independence of office and direct reporting to the Minister of National Defence, the current governance structure places the Ombudsman within the departmental framework. Therefore, the current reality is that the Ombudsman cannot operate without the financial and human resource authorities vested in the Deputy Minister - an officer to whom the Ombudsman does not report.

An interest-based solution is needed

It bears repeating that when the office of the Ombudsman was being established the intention was to capitalize on the existing administrative framework of the Department only until such time as the mandate could be tested and regulation enacted.  For reasons explored in my aforementioned report, the temporary situation has become the steady-state.

The consequent complexity of the governance structure has been acknowledged by every political and departmental administration since the creation of the Ombudsman office. It was also flagged as an issue in the Spring 2015 report of the Auditor General of Canada with the recommendation that the Deputy Minister and the Ombudsman work together to ensure that the authorities delegated by the Deputy Minister are functioning as intended while not impeding the operational independence of the Ombudsman.4

In point of fact, it is not the interests of the Deputy Minister and the Ombudsman themselves that are conflictual; it is the framework within which those interests operate that causes the challenges. For example, it is everyone’s interest to ensure the sound stewardship of public resources which necessarily entails control mechanisms and accountabilities. Further, it is in the defence community’s collective interest to have an Ombudsman who can carry out the mandate and deliver services to constituents.

The solution lies in protecting the substantive interests at stake instead of inflexibly upholding the framework within which those interests operate.  Our legislative and policy framework is not so prescriptive that it cannot accommodate all interests and meet the objectives expressed by the Minister of National Defence and the Auditor General Canada.

I believe that this can be accomplished with an interest-based approach to governance. I trust that it can be accomplished before this organization marks its 20th year of operation and before a new Ombudsman takes office.

The starting point for this action plan is to look at the various interests and find ways to make them align and work together.

Statement of the interests

The interest of the Ombudsman is to serve its constituents, members of the defence community who believe they have been treated unfairly by the Department of National Defence or the Canadian Armed Forces.  To do this, it is crucial to have all of the authorities needed to effectively and independently run the office and carry out the mandate as set out in the Ministerial Directives. This includes operating in a manner that is consistent with the principles of ombudsmanry, i.e., independence, impartiality, confidentiality, and fairness.5 These principles are significant because they are the benchmark against which every ombudsman function is measured. Moreover, operating in accordance with these principles gives constituents confidence that their matter will be reviewed impartially by an office that is not under undue influence from the department it reviews.

In order to manage the organization independently from the Department, but within its administrative structure, the Ombudsman requires:

  • stable delegated authorities that remain constant from one Ombudsman to the next and one departmental administration to the next
  • timely issuance of delegated authorities
  • substantial recognition of its independent status in the specific delegations and general policies
  • respect of the Ombudsman’s reporting line to the Minister of National Defence
  • the ability to determine how best to carry out the mandate independently from the Department

The interest of the Deputy Minister, as set out in the Spring 2015 report of the Auditor General of Canada as well as in abundant correspondence, is to ensure that the responsibilities and accountabilities under legislation are properly exercised by those to whom the Deputy Minister delegates authorities. This would reasonably entail conditions that allow the Deputy Minister and/or Department to have:

  • administrative controls in place to ensure that delegations are appropriately exercised
  • discretion to delegate or sub-delegate authorities according to the administrative and policy needs of the department
  • the ability to shape departmental policy

A holistic approach

There has been significant exchange of correspondence on the issue of governance by all Ombudsman office-holders with all past administrations, both departmental and political. There is a consistent pattern in the documentation related to the ability of the Ombudsman to function independently of the Department and in accordance with the mandate set out in the Ministerial Directives. 

Much of that correspondence was prompted by a series of singular governance issues that needed to be addressed promptly in the context of an ongoing file or investigation. Other issues arose when the authorities of the Ombudsman were altered without notice or when departmental policy changed without consideration of the impact on the Ombudsman’s operations. Attempting to deal with each issue separately has not been productive.

Rather than the piecemeal approach, I recommend a holistic and pro-active approach to finding an interest based solution. The intended result is a blueprint for stable operating authorities for this office with a sufficiently compelling rationale that each new office-holder and administration will be able to endorse (whether Minister of National Defence, Deputy Minister, new employee, or Ombudsman).


  1. Canada, National Defence and Canadian Forces Ombudsman, The Case For a Permanent and Independent Ombudsman Office, (Ottawa: 2017), online: National Defence and Canadian Forces Ombudsman <online: http://www.ombudsman.forces.gc.ca/en/ombudsman-reports-stats-investigations-the-case-for-a-permanent-and-independent-ombudsman-office/the-case-for-a-permanent-and-independent-ombudsman-office.page>.
  2. Canada, Minister of National Defence, Response from the Minister of National Defence Re: The Case for a Permanent and Independent Ombudsman Office, (Ottawa: 2017), online: National Defence and Canadian Forces Ombudsman <online: http://www.ombudsman.forces.gc.ca/en/ombudsman-news-events-media-letters/response-from-mnd-governance.page>.
  3. Canada, Minister of National Defence, Ministerial Directives Respecting the Ombudsman for the Department of National Defence and the Canadian Forces, (Ottawa: 2001) [Ministerial Directives]; Canada, Deputy Minister and Chief of the Defence Staff, Defence Administrative Orders and Directives 5047-1 (Office of the Ombudsman), (np: 2001) [DAOD 5047-1].
  4. Canada, Auditor General, Office of the Ombudsman for the Department of National Defence and the Canadian Forces (Report 7) (Ottawa: 2015).  <online: http://www.oag-bvg.gc.ca/internet/English/parl_oag_201504_07_e_40353.html>
  5. See Annex A of this Report for an elaboration of the principles of Ombudsmanry.
The Action Plan – Issuance of Delegations

The Action Plan

This action plan addresses many of the governance issues that challenge the office of the Ombudsman, elaborating where necessary the interests at stake and how to address those challenges without compromising the legislative framework of the Department or the responsibilities of the Deputy Minister. This approach does not offer the full solution that legislation would, but it will give the office of the Ombudsman better stability to carry out its mandated duties.

Issuance of Delegations

Because most delegations are issued by the Deputy Minister, the Ombudsman is reliant upon the decisions of each individual who is appointed to that position. The consequence is that the Ombudsman has no guarantee of constant functional authorities necessary to manage the organization.

In point of fact, each incumbent to the office of the Ombudsman has experienced delays in receiving the full suite of delegated authorities. Moreover, these delegated authorities have changed over the nineteen years that the office has existed. They have changed from one Deputy Minister to another, and have even changed during the tenure of a single Deputy Minister. There are numerous instances where the delegations have been delayed, truncated or removed entirely, often without notice to or discussion with the Ombudsman.

There are several reasons why the delegations changed and why we now find ourselves in this state of instability.  For the first years, and during the tenure of the first office-holder, the dialogue was entirely taken up with negotiating the initial authorities and the expected regulation. Subsequent office-holders continued to lobby for legislation, however, the actual delegations of authority remained relatively stable with issues being dealt with on a case by case basis. If there were changes to the delegations or administrative reporting requirements, they were either prompted by central agency directives and/or decisions of the Deputy Minister regarding how to report within the departmental reporting structure.

The most significant changes in delegations occurred after the Spring 2015 report of the Auditor General of Canada.6 This audit pointed to a number of issues including the inconsistency in control mechanisms for the office of the Ombudsman. The Auditor General recommended that the leadership of the Department of National Defence and the office of the Ombudsman address the issues, being mindful of respective organizational interests.

Since the Auditor General’s report, the current Ombudsman has enhanced internal administrative control mechanisms to ensure compliance with legislation and policy obligations.  Additionally, in response to that report, the Ombudsman invited periodic audits by the Department in order to provide the necessary assurances that the delegated authorities are being appropriately exercised. It is to be noted that all financial audits since then have demonstrated strong stewardship of the Ombudsman’s financial management. 

Regrettably, however, the Auditor General’s report prompted a departmental swing from a laissez-faire to a restrictive approach to its administrative relationship with the Ombudsman’s office.7 The balance is off, having swung too far to the restrictive approach with the result that the interests of the Ombudsman and its ability to function effectively are impeded.

The following charts (online: see link to the right of this section) give a visual snapshot of the changes in delegations, both financial and human resource, that cause challenges for the office of the Ombudsman.8

Stable operating authorities for the office of the Ombudsman with a sound rationale

It is critical that the office of the Ombudsman have stable functional authorities and the necessary delegations to carry out its mandate and fulfil the operational requirements of the office.

Notwithstanding the prerogative of each Deputy Minister to issue delegations under his or her signature, the delegation of authorities must be based in sound policy reasoning.

A suitable policy rationale for issuance of delegations to the office of the Ombudsman is found in the Ministerial Directives which specify that the office of the Ombudsman is independent from the management and chain of command of the Department and the Canadian Armed Forces.9 Administrative and operational independence is critical because the Ombudsman should not be controlled, or perceived to be controlled, by the very organizations that it was established to report on and investigate.

It is recommended that this rationale, as well as the unique relationship between the Department and the Ombudsman, be acknowledged by all current stakeholders so that it may serve as a blueprint for the issuance of delegations going forward.

While the legal authority of successive Deputy Ministers cannot be fettered, it is recommended that a DAOD supporting the Ministerial Directives be drafted to acknowledge the principles of ombudsmanry and the policy rationale that will give effect to the Ombudsman’s operating authorities, including the requirements for a distinct delegation instruments and periodic audits.10

Recommendation 1

It is recommended that a Defence Administrative Order and Directive supporting the Ministerial Directives be drafted and issued, acknowledging the principles of ombudsmanry and setting out the rationale that will guide the issuance of delegations for the Ombudsman by successive Deputy Ministers.

Stable delegation to the position – not to the individual

Before officials can exercise the authorities delegated to their positions, they must complete the departmental training, be certified, and be designated by their superior.

In the case where an individual with authorities has demonstrated a persistent misinterpretation or disregard for the rules, there are means to address the matter without impacting the effective operations of the office.  For example, the consequences for the individual might range from training, including re-certification, to withdrawal of his or her designations. The delegations and thresholds for the office, however, should not be affected.

It is recommended that, where an individual is found to be deficient in the exercise of delegated authorities, appropriate remedial measures be taken.

Recommendation 2

It is recommended that, where an audit finds that a member of the Ombudsman’s staff has improperly exercised delegated authorities, appropriate remedial measures be taken by the Ombudsman in consultation and agreement with the Deputy Minister, including the Deputy Minister’s withdrawal of the designation.

Separate instruments for the office of the Ombudsman

The format of the delegation instruments for the office of the Ombudsman, both for financial and human resource authorities, have changed over the years.  While initially, the delegation instruments were specific to the office of the Ombudsman, there has been a gradual integration into departmental matrices. Some authorities are still found in letters and minutes while other authorities have been fully integrated into departmental instruments which has resulted in considerable confusion and uncertainty. It has also resulted in some very practical operational challenges.

Prior to 2015, the instrument for delegation of financial authorities for the office of the Ombudsman was self-contained.  It specified both the positions to which the delegations were made as well as the financial thresholds authorized for those delegated positions. In 2015, the office of the Ombudsman was integrated into the departmental financial delegation matrix with the significant, though perhaps unintended, consequence of affecting the Ombudsman’s ability to make operational decisions regarding the functioning of the office.

The instruments that delegate human resource and labour relations authorities are somewhat more complex as there are multiple legislative sources and administrative requirements for delegation.  For example, the authorities for appointments to the public service (staffing) come from the Public Service Employment Act through the Public Service Commission to deputy heads who may then sub-delegate to positions within their organizations. Where a deputy head wishes to sub-delegate to persons whose functions do not fall within their organizations or direct reporting line, a specific arrangement is required. The office of the Ombudsman has always had a specific arrangement that allows the Deputy Minister of National Defence to sub-delegate appointment and appointment-related authorities to the Ombudsman in relation to the office of the Ombudsman.11

Having self-contained instruments separate from those for the Department provided several advantages as well as a degree of organizational stability.  The separate delegation instruments amounted to a recognition of the independent status of the Ombudsman and the unique relationship with the Deputy Minister.  It insulated the office from changes to delegations that might be appropriate for the senior officials of the Department but not for the Ombudsman who is responsible for an independent organization. Separate instruments ensured that changes to delegations, if any, and their potential operational impacts would be considered and discussed with the Ombudsman. 

The integration of Ombudsman into the departmental matrices has eliminated these advantages and has largely assimilated the Ombudsman with Level 1 Advisors whose responsibilities, operational needs, and reporting lines are different.

The best and easiest way to fix these issues, without affecting the interests of the Deputy Minister, would be to have delegation instruments for the Ombudsman separate from those of the Department.  This would ensure that the unique status of the relationship be considered if and when delegations need to be reviewed. It would also create stability and allow for discussion when exceptional circumstances occur that were not anticipated at the time the delegations were issued.

Recommendation 3

It is recommended that the delegation instruments for the office of the Ombudsman be self-contained and kept separate from those of the Department, as was previously the case.

Audits and responsive correctives measures

In keeping with the interest based approach, the Deputy Minister must be have assurances that the authorities delegated to the office of the Ombudsman are appropriately exercised. The periodic audits since the current Ombudsman has taken office have shown compliance and sound financial management.  The expectation is that the systems in place contain sufficient checks and balances to catch and address anomalies going forward. It is recommended that the periodic audits by the Department continue and corrective measures be taken, if required, by the office of the Ombudsman.12 

Recommendation 4

It is recommended that the Ombudsman and Deputy Minister conclude a Memorandum of Understanding establishing periodic audits by the Department of the exercise of financial and human resource delegations by the office of the Ombudsman.13


  1. The audit was, in part, initiated following allegations of administrative irregularities by one GiC office-holder.
  2. The laissez-faire approach evolved in recognition of the provision in the Ministerial Directives to the effect that the office of the Ombudsman is independent from the management of the Department and the intent to enact regulation for the office.
  3. The charts are excerpts from the delegation instruments and do not include all delegations granted to the Ombudsman.
  4. Ministerial Directives, supra note 3 at s 3(ii).
  5. See Annex B of this Report for the proposed DAOD.
  6. See Annex C for the Appointment Delegation and Accountability Instrument (ADAI), the Specific Arrangements for sub-delegation and the delegation for EX-group appointments.
  7. Audits of the administrative files of the office of the Ombudsman by the Department are not problematic provided there are no issues related to the confidentiality of complainant information. Audits allow administrative actions to be reviewed by an expert not involved in the original transaction to ensure compliance with rules and best practices. 
  8. Note that MOUs have already been established regarding regular financial audits by the Department.
The Action Plan – Financial Delegations

The Action Plan

Financial Delegations

For the office of the Ombudsman to be administratively and operationally independent, both in fact and in perception, it is critical that the office have all of the authorities needed to run an organization.  This section outlines the main issues related to financial delegations thresholds and provides recommendations that would ensure the Ombudsman’s independence regarding organizational decision-making.

A draft delegation matrix for financial authorities is found at Annex D to this Report.

Budget process

The amount of the annual allocation for the office of the Ombudsman has not historically been an issue. From the creation of the office in 1998 until 2011, the office of the Ombudsman was automatically allocated an annual operating budget of just under 6 million dollars. 14

The Office of the Ombudsman first sent a business plan to the department in 2010 for the 2011/12 fiscal year. This was in response to a departmental call letter that actioned the Ombudsman contrary to previous call letters which were sent for information only.

First, it is important to note that the requirement to submit a business plan to the Department for review and financial decision is problematic for an independent organization that reports to the Minister and not the Deputy Minister.15

Second, the Ombudsman’s annual allocation by the Department raises concerns with respect to the principle of independence inasmuch as the Ombudsman’s purse strings are controlled by one of the organizations it is mandate to review. 

This is not to say that planning should not be done or that a submission should not be filed with the Department; however, it should be done for the purpose of transparency and accountability and not for the purpose of departmental review and decision making.

The budget submission for 2017-18 sought an increase in funding based on an increased volume of constituent contacts. While the business plan submitted by the Ombudsman to the Department was fully justified, the submission was initially denied.16 The budget was ultimately approved following discussions between the Ombudsman and Deputy Minister.17

Nevertheless, budgetary control by the Department is potentially problematic as it is a means by which the Department can interfere with the Ombudsman’s planning processes, question the suitability of expenditures made in order to carry out the mandate, and ultimately restrict the activities of the Ombudsman by rejecting the budget submission.

Recommendation 5

It is recommended that the Ombudsman’s business plan be submitted to and approved by the Minister of National Defence, to whom he reports, and that the Ombudsman’s fully justified annual budget submission be filed with the Department. 

Contracting thresholds

Further issues arise in the establishment of spending thresholds. The Ombudsman requires that delegated authorities have adequate thresholds so that the Ombudsman can manage the office independently. 

Prior to 2015, the Ombudsman had significantly higher thresholds for contracting.  The following chart illustrates the changes for some of the categories within the delegations for contracting expenditures.

Take for example contracting for services. Generally, the first course of action is to determine whether the service is available through a supply arrangement or standing offer; if not, the delegate can tender and manage a contract provided it is within the delegated threshold.  If the contract exceeds the threshold, then ADM (MAT) is, by default, the contracting authority with decision-making power over all aspects of the contract.

This process may be suitable for most departmental contracts, but is not suitable for the office of the Ombudsman. If ADM (MAT) is the contracting authority on Ombudsman contracts, regardless of the amount, then there is an incursion on the Ombudsman’s independent management of his or her office and, potentially, a conflict of interest in the case where the contract relates to an investigation into the Department.

In 2015, the office of the Ombudsman was integrated into the departmental matrix and equated with Level 1 Advisors whose responsibilities and reporting lines are different. This resulted in decreased expenditure thresholds and removal of certain authorities that are important for independent decision making. For example, the Ombudsman’s expenditure threshold for contracting for general services (competitive) was reduced from $400,000 to $75,000. This meant that ADM (MAT) would have to act as the contracting authority on Ombudsman contracts exceeding the new lower $75,000 threshold.

To side step the governance issue and maintain independence in contracting decisions, the Ombudsman arranged to have Public Services Procurement Canada (PSPC) act as contracting authority for two high dollar value contracts.18

For two other contracts, the PSPC refused to act as contracting authority due to their relatively low contract values even though they exceeded the Ombudsman’s new contracting threshold. For these two contracts, the Ombudsman had to adjust the scope of the requirements and lower the number of days available for the work so that the contract amounts could fit within the $75,000 threshold.  Essentially, the lower contracting threshold has impacted the Ombudsman’s ability to address operational needs.

There is no risk of this issue arising if the Ombudsman’s expenditure thresholds for contracting are sufficient. Prior to 2015, the expenditure thresholds for contracting were generally adequate for the proper day-to-day functioning of the office.

It is recommended that the amounts revert, as a minimum, to amounts existing before the 2015 integrated matrix. Exceptionally, contracts that exceed the delegated expenditure threshold can be dealt with on a case by case basis by the Ombudsman and the Minister.

Recommendation 6

It is recommended that the contracting thresholds for the office of the Ombudsman be reinstated, at a minimum, to pre-2015 amounts.

Travel and Hospitality thresholds

The Ombudsman conducts regular travel to bases and wings for constituent engagement in order to carry out the mandate. Travel is also required for other aspects of our core business such as conducting investigations, managing the annual Commendations, and holding meetings of the Ombudsman Advisory Committee.19 Typically, the Ombudsman’s annual expenditure on travel and hospitality makes up approximately 20% of the office’s total annual allocation.

The Deputy Minister has set the ceiling for travel and hospitality for the Department at 2.1 million dollars which is allocated to Level 1 Advisors, including the office of the Ombudsman. The Deputy Minister in consultation with ADM (FIN) sets expenditure thresholds each fiscal year for travel and hospitality based on a review of the previous year’s expenditures as well as the travel and hospitality plans submitted during the business planning period.

Again, the process by which the travel and hospitality threshold is set for the Level 1 Advisors who report directly to the Deputy Minister is problematic for the Ombudsman because it places the control of a key aspect of the Ombudsman’s core business in the hands of the Department.

For fiscal year 2015-16, the threshold set for the Ombudsman was much lower than the submission in the Ombudsman’s business plan. The Ombudsman’s threshold was subsequently increased to match the plan after discussions that outlined how the unreasonably lower threshold constituted interference with core operations.

For 2017-18, the Ombudsman was given the exact threshold submitted in the planning documents. While the logic presented in the previous years prevailed and the independence of the office of the Ombudsman has been respected by the Department for this year, the concern going forward remains the same.  The issue, in the case of thresholds for travel and hospitality, is that it limits the ability of the Ombudsman to be flexible and to address new matters as they arise during the year.

The interest of the Deputy Minister in this case is to ensure that there is transparency and accountability with respect to the management of department finances, and to ensure that the ceiling amount for the entire Department is appropriately allocated.

It is recommended that the threshold for travel and hospitality, as submitted by the office of the Ombudsman, be approved with a 20% additional margin to allow for contingencies.  That additional margin will be absorbed in the overall allocation for the office of the Ombudsman. Where this is insufficient to address a particular contingency, the Ombudsman will discuss with the Minister and the Deputy Minister.

Recommendation 7

It is recommended that 

  1. the expenditure threshold for travel and hospitality for the office of the Ombudsman be approved as submitted, understanding that the submission will include a margin to allow for contingencies
  2. the hospitality threshold is approved in accordance with the Ombudsman’s submission
  3. exceptions be managed on a case by case basis by the Ombudsman and Deputy Minister.

Reported as a line item

The Ministerial Directives state that the budget of the Ombudsman shall be reported as a separate line item in the Department’s estimates and shall be detailed in the annual report that is prepared by the Ombudsman.20 This practice is important because it recognizes the office of the Ombudsman as a separate organization and informs Parliamentarians regarding the cost of running the office of the Ombudsman.21 In fiscal year 2017-18, the relative cost of the office of the Ombudsman is 0.037% of the total annual defence budget.

The Ombudsman files reports with the Department annually on the finances and activities of the office. However, in 2014, the Department discontinued the practice of reporting the budget of the Ombudsman as a separate line item.

Recommendation 8

It is recommended that the Department reinstate, in accordance with the Ministerial Directives, the practice of reporting the Ombudsman’s annual budget as a separate line item in the Department’s Main Estimates.


  1. From the establishment of the office until 2016 the annual budget remained relatively stable at approximately 6 million dollars. In 2011, there was an 8 % cut due to the DRAP exercise.
  2. The departmental process for business plan approval and consequent budget allocation is complex, and involves dedicated resource management groups as well as at least two senior management / leadership committees who review submissions against the prevailing defence spending priorities.  The large “Level 1s” (direct reports to the Chief of the Defence Staff / Deputy Minister) and some of the smaller Level 1s may be invited to present their business plans to both committees, but not all of the written business plans are reviewed by both committees.  This process is inappropriate for the Ombudsman, as business plans should not be reviewed and approved by officers whose organizations are subject to investigation by the Ombudsman.
  3. The Ombudsman’s business plan was reviewed and the Ombudsman’s requested additional funding was not approved at the program officer level.  The written business plan was not submitted to the budgetary committees, as that year other than the large Level 1s, only the small Level 1s identified for cuts to their budgets had their business plans discussed by the committees.
  4. The submission for increased funding was supported by an increase in constituent contacts. Note that the increase was for 1.4 million dollars. Further, the approval was late, causing an operational impact on the office of Ombudsman.
  5. This refers to the contract for a Learning and Development Program worth $250,000, and the contract with the Core of Commissionaires worth $500,000.
  6. The mandate requires the establishment of an Ombudsman Advisory Committee. See Ministerial Directives, supra note 3 at s 39.
  7. Ministerial Directives, supra note 3 at s 11.
  8. The main estimates outline spending for departments, agencies and programs, and contain the proposed wording of the conditions governing spending that Parliament will be asked to approve. The information provided in the estimates is reproduced as the schedule to the Appropriation Act.
The Action Plan – Human Resources and Labour Relations

The Action Plan

Human Resources and Labour Relations

Critical decisions about how work is planned, what positions and levels are necessary to get the work done, and who is the best fit for a given position must be made by the person who is responsible for the organization and delivery of services. Equally critical are the decisions related to how managers and staff interact to create a fair and productive workplace.

The human resource and labour relations authorities needed for an organization to function come from a number of legislative sources and are delegated or sub-delegated through various instruments.

Regardless of the instrument, the delegations of authority for human resources and labour relations for the Ombudsman have been inconsistent with a major clawback of the delegations in the May 2015 instrument. This has resulted in challenges for the Ombudsman, specifically with respect to the implications of having decisions on labour relations issues default to the Deputy Minister’s departmental designate. In addition to undermining the Ombudsman’s authority with his staff, this runs contrary to the Ombudsman’s direct accountability and reporting line to the Minister of National Defence and the independence of the organization.

Authorities needed by the Ombudsman

In principle, the Ombudsman should have all of the authorities that may be needed to manage an independent government organization. This must be the starting point.

There are, however, authorities that would not be needed given that the office of the Ombudsman will fall within the departmental framework. For example, the Ombudsman would not need to have the delegated authority to act as a representative for the Department for negotiations with bargaining agents.22

The Ombudsman only requires the authorities that affect the hiring and management of his own staff and engagement of technical and professional advisers as is considered necessary for the conduct of Ombudsman activities.23 The authorities listed in Annex E to this Report are those that would be expected for independent decision making by the head of any independent organization.

Note that a full suite of delegated authorities for the Ombudsman in no way negates consultation with the Department on matters relating to procedures or best practices. Equally, it in no way restricts the possibility of concluding Memorandums of Understanding to obtain expertise where it is unavailable in-house.24

Recommendation 9

It is recommended that:

  1. delegations or sub-delegations, as the case may be, related to human resource and labour relations for the office of the Ombudsman be reinstated, at a minimum, to those existing before 2015 and more specifically with the authorities set out in Annex E of this report;
  2. the Ombudsman and the Deputy Minister conclude a Memorandum of Understanding establishing periodic audits of the human resource and labour relations files of the office of the Ombudsman by the Department; and
  3. where an audit finds non-compliance, corrective action is discussed and agreed upon by the Deputy Minister and Ombudsman.

Human resources in-house expertise

When the office of the Ombudsman was established, the human resource and labour relations function was in-house. In 2014, while the office of the Ombudsman was undergoing the audit by the office of the Auditor General, the current Ombudsman took office and conducted his own assessment of the organization’s capacity to deliver on its mandate. The Ombudsman determined that there could be potential economies of scale by working more closely with the Department and having access to their extensive subject matter expertise in all areas of human resource management. Accordingly, the Ombudsman approached the Department and concluded a one-year renewable Service Level Agreement requiring the mutual consent of both parties for any amendment.  The agreement also transferred three indeterminate positions and their salary allocations from the Ombudsman to the Department.

Unfortunately, the expected economies of scale have not been borne out: service standards have not been met, the office has no dedicated human resource officer familiar with our business needs, and the resulting delays have had a negative effect on operations and on the management of the Ombudsman’s Salary and Wage Envelope. An organization as small as the office of the Ombudsman requires nimble and efficient staffing processes and immediate dedicated resourcing to address human resource issues.

To complicate matters further, in 2016, the Department cancelled all of its Service Level Agreements in favour of restructuring its human resource management. This was done unilaterally notwithstanding the specific clause requiring mutual agreement to any amendment. The Ombudsman is now in the position of being without any specific written arrangement with the Department, no full-time dedicated in-house expert or access to departmental systems, and service delays that impede our efficiency.

Part of the solution lies in restoring the PE-05 position that previously existed in the office of the Ombudsman with full access to the Human Resource Management System of the Department (HRMS). This will allow the office the Ombudsman to have control over its own staffing processes and the ability to be responsive and flexible.  It will eliminate delays that result from being a lesser priority in the departmental queue.

In order to have the necessary assurances that staffing is being conducted according to legislation and policy, periodic audits of select files should be conducted by the Department.

Recommendation 10

It is recommended that the position of Human Resource Officer, internal to the office of the Ombudsman, be restored with full access to the necessary human resource systems of the Department. 

Classification

All organizations evolve based on a variety of business, social, political, and environmental factors. In order to remain efficient and effective, organizational restructuring is occasionally necessary, including reassigning responsibilities to different positions. This has implications on human resources and means that job descriptions, reporting structures, and classifications will occasionally need to be reviewed.

It is understood that the Department has an interest in standardizing job descriptions and ensuring consistency in the classification levels of positions that have similar functions.  However, if the Ombudsman is to be effective, some distinctions need to be recognized and accommodated notwithstanding that the office remains within the administrative framework of the Department.25

In terms of the reporting structure and the accountabilities and responsibilities of senior officials (including job descriptions and classification levels), small organizations necessarily have different needs than large organizations.  What works for a sixty-person organization such as the office of the Ombudsman may not meet the needs of a one-hundred-thousand-person organization such as the Department of National Defence, and vice versa. In fact, the Ombudsman structure is more comparable to small government agencies and departments than it is to the Department of National Defence.

With respect to job descriptions and classification levels, the office of the Ombudsman has very different needs, not only because of its small size, but also because of the unique nature of the work that it carries out. It is critically important that classification decisions not be imposed on the Ombudsman based on a model that is good for the larger Department as a whole. 

There is insufficient classification work for the Ombudsman to seek these authorities and develop in-house expertise. However, it is recommended that the Department work to meet the needs of the Ombudsman by using other small government organizations as benchmarks for the development of Ombudsman job descriptions and classification levels, as appropriate, rather than indiscriminately looking to the generic ones used by the Department.

Recommendation 11

It is recommended that, where the expertise in human resource classification for small organizations is required and/or a unique job description is needed for a position in the office of the Ombudsman, the matter be outsourced to the Shared Human Resources Services offered by the Public Services and Procurement Canada.26

Final level grievance authority

Grievances usually concern the interpretation of the terms and conditions of employment, including provisions of the collective agreement. The right of employees to grieve is set out in the Federal Public Sector Labour Relations Act and the process for grievances in the respective collective agreements. The grievance process ordinarily has three levels, the first being the employee’s immediate supervisor and the final level often being the deputy head of the organization or an authorized representative.

In the case of the Department of National Defence, the Deputy Minister has designated the Director General Workplace Management.27 Prior to 2015, the Deputy Minister also designated the Ombudsman as the final level in the grievance process for grievances brought by employees of this office.28

The designation for the Ombudsman, which was in place for fourteen years, was removed in 2015 despite acknowledgement by the Deputy Minister that the designation was completely consistent with the legislative framework. The Deputy Minister stated that the rationale for the change was to align the process for employees of the Office of the Ombudsman with that in place for other Department of Defence employees.  This rationale directly conflicts with the interest of the Ombudsman to manage an independent organization, undermines the Ombudsman’s leadership in the day to day management of his staff, and is inconsistent with the Ombudsman’s direct reporting and accountability to the Minister of National Defence.

After an exchange of correspondence and discussion, the delegation has been partially reinstated. In its current formulation, however, the delegation is ambiguous and insufficient to meet the above outlined interests of the Ombudsman.29

Given that the Deputy Minister has stated that the designation to the Ombudsman to act as the final level in the grievance process is consistent with the legislative framework, it should be acceptable to fully reinstate the designation. Nevertheless, in order to ensure appropriate exercise of the authority and avoid potential conflicts of interest, a limitation can be included to the effect that the Ombudsman must recuse himself where the grievance relates to his own actions or decisions.  In that eventuality, the final level grievance will be exercised by a third party outside of the departmental framework.

Preliminary discussions with the Labour Relations unit of Public Services and Procurement Canada30 suggest that they are prepared to perform this function if called upon.

Recommendation 12

It is recommended that:

  1. the designation be reinstated to authorize the Ombudsman to act as final level in the grievance process for staff of the office of the Ombudsman;
  2. a limitation be included to the effect that the Ombudsman shall recuse himself or herself from any grievance  related to his or her actions or decisions; and
  3. a third party outside of the departmental framework be designated as the final level in the grievance process for grievances related to the Ombudsman’s actions or decisions.

Informal conflict management system

Under the Federal Public Sector Labour Relations Act, deputy heads are required to consult with their employee bargaining agents and establish an informal conflict management system (ICMS).31

When the legislation was enacted in 2003, the then Ombudsman took the initiative and consulted with the relevant union to establish a system for the office, separate from the Department. The Ombudsman looked for an appropriate subject matter expert to provide the services for the office because it was recognized that the small size of the office would make it difficult to ensure a confidential and safe environment for employees to address their workplace issues.  Further, it was understood that the principles of independence and confidentiality required the Ombudsman to find a neutral third party service provider so that workplace issues internal to the office of the Ombudsman would not default to the Department for resolution.32

A Memorandum of Understanding was concluded with the Department of Justice. This was accomplished without a formal delegation and was tacitly accepted.

In 2015, the current Ombudsman re-negotiated the MOU with the Department of Justice and has since renewed the MOU for the subsequent fiscal years.33

Recommendation 13

It is recommended that the authority for dealing with Informal Conflict Management Systems for the office of the Ombudsman be formally delegated to the Ombudsman.

Harassment Prevention and Resolution34

The Ombudsman has the delegated authority to receive, administer and respond to harassment complaints for the office.35 Accordingly, he has appointed a Harassment Advisor and has six Workplace Relations Advisors, all of whom have been formally trained and accredited in the application of departmental policy and procedures.

While the delegation of authority is currently not an issue, the recent changes in the Department’s Policy on Harassment Prevention and Resolution (DAOD 5012-0) and supporting procedural instructions cause challenges for the office of the Ombudsman. Under the new procedure, the role of Harassment Advisor defaults to ADM (HR-Civ), specifically to the position of Labour Relations Officer (LRO) for all civilian employees.36

The same concerns about organizational independence and blurred reporting lines, previously elaborated, apply in this case.

Further, the stated policy rationale for re-assigning the functions of the Harassment Advisor to the Labour Relations Officers is that the Labour Relations Officers have expertise in civilian human resource issues and knowledge of the legislative and administrative framework surrounding those issues.  While centralization of a function may work for a large organization, it does not work for a smaller organization that has the same expertise.  The office of the Ombudsman has both the in-house legal expertise and accreditations to receive, administer, and respond to harassment complaints in accordance with the substance of the Treasury Board and Department policies.

This example illustrates how, even where delegations are in order, the procedures and policies that give effect to the legislation may require adaptation to apply to the office of the Ombudsman.37

Recommendation 14

It is recommended that the Policy on Harassment Prevention and Resolution (DAOD 5012-0) be amended to state that the harassment prevention and resolution program for the office of the Ombudsman will be managed by the Harassment Advisor internal to the office of the Ombudsman.


  1. Department of National Defence, Instrument of Delegation of Human Resources Authorities for Civilian Public Service Employees of National Defence (Ottawa, 25 August 2016) at “Labour Relations, Human Rights, and Political Authorities” line 1 [Instrument of Human Resources Authorities 25 August 2016].
  2. Ministerial Directives, supra note 3 at ss 8-10.
  3. MOUs/contracts for expertise could be concluded with the Department of National Defence, other government departments, or with third party contractors depending on the matter.
  4. Section 11.1(1)(b) of the Financial Administration Act, RSC 1985, c F-11, gives Treasury Board the ability to provide for the classification of positions in the public service.  Treasury Board’s Policy on Classification gives the responsibility to Deputy Heads, who can sub-delegate their authorities. 
  5. The Shared Human Resources Services of Public Services and Procurement Canada offer a service to small agencies and departments who choose to outsource their human resource needs. 
  6. Instrument of Human Resources Authorities 25 August 2016, supra note 23 at “Labour Relations, Human Rights, and Political Activities” line 5 note 19.
  7. See Annex F of this Report for previous delegations instruments relating to final level authority.
  8. Instrument of Human Resources Authorities 25 August 2016, supra note 23.
  9. Supra note 27. 
  10. The Federal Public Sector Labour Relations Act was previously titled the Public Service Labour Relations Act, S.C. 2003, c.22, s. 2. The legislation was amended and renamed in June 2017.
  11. Instrument of Human Resources Authorities 25 August 2016, supra note 23.
  12. Aware and respectful of the framework for delegations, the Ombudsman informed the Minister and the Deputy Minister of his intentions to renegotiate with the Department of Justice and provided a copy of the draft memorandum of understanding. No response regarding this action was forthcoming. The MOU was signed in 2015 and renewed for the following fiscal years.  
  13. This is based on Treasury Board policies and directives, which are designed to go beyond the requirements of the Canadian Human Rights Act.
  14. Instrument of Human Resources Authorities 2016, supra note 23 at “Labour Relations, Human Rights, Political Authorities” at line 11 (granting authority to receive and respond to harassment complaints).
  15. Canada, National Defence and the Canadian Armed Forces, Defence Administrative Orders and Directives (DAOD 5012-0) – Harassment Prevention and Resolution, (Ottawa: 2017) <online: http://www.forces.gc.ca/en/about-policies-standards-defence-admin-orders-directives-5000/5012-0.page>.
  16. It is the practice of the Ombudsman to ensure substantive compliance with all legislation and policy.  Where departmental policy or procedures have created operational challenges for the office, the Ombudsman has advised the Minister and Deputy Minister and proposed adaptations.
The Action Plan – Other Obligations and Laws with Government-wide Application

The Action Plan

Other Obligations and Laws with Government-wide Application

When the office of the Ombudsman was established, apart from the financial and human resource authorities needed for the day to day management of the office, the Ombudsman was given full autonomy to act under several laws that have government-wide application.

Canadian Human Rights Complaints

Full authority was granted to the Ombudsman’s General Counsel to address human rights complaints relating to the office and to interact directly with the Human Rights Commission.38 This was considered important to provide the Ombudsman with the ability to address complaints without intervention or involvement by the Department in the substance of confidential files.

The authority was comprehensive and included the right to negotiate and pay settlements under the Canadian Human Rights Act and record and report payments to the Public Accounts.

This delegation was removed from the Ombudsman’s General Counsel by the 26 May 2015 delegation instrument. The Ombudsman sent correspondence objecting to the removal of this authority, explaining its importance with respect to the independent operations of the office and the protection of confidential constituent information.

The latest instrument of delegation, dated 25 August 2016, partially reinstates the previously held delegations for addressing human rights issues.39 Nevertheless, it now requires a mandatory consultation with the Director General Workplace Management. Further, a legal opinion on liability and quantum is required from the office of the DND-CF Legal Advisor with any consideration of ex gratia payment decided by the DND-CF Legal Advisor. Further still, any settlement that is contrary to the opinion of the DND-CF Legal Advisor must be referred to the Deputy Minister for resolution. This partial reinstatement is problematic in that the DND-CF Legal Advisor has no access to Ombudsman files and would not be in a position to provide advice regarding the management and resolution of the complaint. Note that the Ombudsman has in-house legal counsel who would provide this type of opinion based on considerations that may be different than those of the Department.

Until November 2016, the debate was largely theoretical because there was no actual file that required the exercise of these delegations. However, a human rights complaint has now been filed against the Department of National Defence notwithstanding that the matter relates to an investigation by the office of the Ombudsman related to the actions of the Canadian Armed Forces. The Department and the Ombudsman are now faced with responding to a complaint filed with a third party organization, where the Ombudsman’s delegation is insufficient, ambiguous, and impracticable.40

Given the in-house legal expertise at the office of the Ombudsman, it is recommended that the authority to deal directly with the Canadian Human Rights Commission be fully reinstated including the right to negotiate settlements and approve ex gratia payments.

Given that the Ombudsman remains within the departmental framework, it is clearly in the interest of the Deputy Minister to have assurances that human rights complaints are appropriately handled according to departmental protocol. It is therefore recommended that the Ombudsman keep the Director General Workplace Management advised with respect to milestones in the complaints management process.

Equally, the Deputy Minister has an interest in managing contingent liabilities for the department as a whole. Therefore, it is recommended that the Ombudsman’s General Counsel consult with the DND-CF Legal Advisor with respect to potential quantum of damages and establish a margin for negotiation and settlement.

Recommendation 15

It is recommended that:

  1. the authority to deal directly with the Canadian Human Rights Commission be fully reinstated including the right to negotiate settlements and approve ex gratia payments;
  2. the Ombudsman keep the Director General Workplace Management advised with respect to milestones in the human rights complaints management process; and
  3. the Ombudsman’s General Counsel consult with the DND-CF Legal Advisor with respect to potential quantum of damages and establish a margin for negotiation and settlement for complaints under the Canadian Human Rights Act.

Public Servants Disclosure Protection Act

When the office of the Ombudsman was created, the delegations of authority were made pursuant to the legislation, policies, and business models in place at that time. Since then, new legislation has been enacted which would not have been captured in the original delegations. Nevertheless, the rationale that the office of the Ombudsman is independent of the administration of the Department still applies.

In 2005 the Public Servants Disclosure Protection Act was enacted to protect federal public servants who disclose incidents of wrongdoing in the Public Service. Under this act, the Deputy Minister designates a senior departmental officer to be responsible for the implementation of the legislation and, more specifically, as the Internal Disclosure Office for civilian public servants of the department. Under the current departmental designation, a disclosure of wrongdoing by an employee of the office of the Ombudsman would be directed to the Internal Disclosure Office and would follow the established procedure, including potential investigation of the office of the Ombudsman by the departmental designate.41

The principle of independence is overridden if the office of the Ombudsman can be controlled and investigated by the very organization it was established to review. The respective investigative mandates create potential issues with respect to the neutrality and impartiality of investigations, actual and perceived, and compromises the credibility of both organizations.

In order to maintain independence from the Department, it is important that the Ombudsman not be subject to any review or investigation by the Department.  Nevertheless, it is also critical to ensure that the obligations of the Deputy Minister and the legal rights of employees, pursuant to the Public Servants Disclosure Protection Act, are fully met.

Discussions continue to take place regarding this matter with a view to amending the relevant Defence Administrative Order and Directive (DAOD 7024-1) to meet the interests of both the Ombudsman and the Deputy Minister.42

It is recommended that any investigation under the Public Servants Disclosure Protection Act be outsourced to a third party that is agreeable to both the Department and the Ombudsman; that the Ombudsman be kept informed as to the progress of the investigation of members of his staff as would be the Deputy Minister; and that any remedial measures be taken by the Ombudsman when members of his own staff are involved.

If the disclosure is alleged against the Ombudsman, then any investigation is referred to the Governor in Council.  

Recommendation 16

It is recommended that:

  1. the DAOD 7024-1 be amended to outsource any investigation under the Public Servants Disclosure Protection Act related to the office of the Ombudsman to a mutually acceptable third party;
  2. the Ombudsman, in consultation with the Deputy Minister where appropriate, take remedial measures where an investigation finds wrongdoing on the part of a member of the Ombudsman’s staff; and
  3. where a disclosure is alleged against the Ombudsman, a Governor in Council appointee, the matter be referred to a neutral third party outside of the departmental framework.

ATIP designation

The designation needed to administer both the Access to Information Act and the Privacy Act for the office of the Ombudsman was designated directly from the Minister of National Defence in 2002.  The reason for granting full autonomy was to protect the confidential information of constituents and the operational integrity of investigative files, neither of which would be possible if the Department were responsible for processing requests.

The office of the Ombudsman has been managing the obligations under these acts independently from the Department with recognition of efficiency by a Treasury Board audit in 2013-14.

While the designation order for ATIP is comprehensive, the instrument dates from 2002 and should be renewed.43

Recommendation 17

It is recommended that the Ombudsman’s designation for ATIP be renewed by the Minister of National Defence.


  1. See Annex F of this Report for previous authorities relating to human rights complaints.
  2. Instrument of Human Resources Authorities 2016, supra note 23 at Preamble, “Labour Relations, Human Rights, and Political Activities Authorities” at line 10, note 18.
  3. The challenges encountered in the actual file management, particularly a lack of clarity with respect to lines of communication with the Canadian Human Rights Commission have been negotiated with the various internal players, as well as the Canadian Human Rights Commission to ensure that the substance of the complaint is not derailed by the governance issue. More specifically, it was agreed that the issue of the delegation would be put aside and dealt with at a later date.
  4. This situation of in-built conflict went from theoretical to concrete in 2011 when allegations of wrongdoing on the part of the then Ombudsman were made. The departmental designate was tasked with investigating the allegations. While there was a finding of no wrongdoing, the incident and the workplace assessment that followed prompted a debate about the propriety of mutual investigations and governance. A current disclosure against the office is underway with the same outstanding issues.
  5. Canada, Deputy Minister and Chief of the Defence Staff, Defence Administrative Orders and Directives 7024-1 (Internal Procedures for Disclosures by DND Employees of Wrongdoings in the Workplace) (2016).
  6. Treasury Board’s review of the Ombudsman’s Annual ATIP Reports recommends updating the delegations. See Annex G for proposed Access to Information Act and Privacy Act designation order. 
Conclusion

Conclusion

Until 2015, the office of the Ombudsman had the necessary authorities and organizational structures to allow the office to function independently from the influences of the organizations it is mandated to review.

The findings of the 2015 Spring report of the Auditor General pointed squarely to a lack of internal controls at the office of the Ombudsman as well as a lack by the Department with respect to monitoring the exercise of delegated authorities. The audit found several instances of mismanagement and recommended that the heads of the two organizations define and document how the office of the Ombudsman will demonstrate that internal controls are effective and operating as intended, and how the Department will monitor the same without impeding the operational independence of the Ombudsman.

A solution that is acceptable to the heads of the Department and the office of the Ombudsman has not yet been found notwithstanding that internal controls instituted by the current Ombudsman are now in place and the audits by the Department have demonstrated compliance.

Legislation giving this office permanence and independence is the solution.  Given that there is no political appetite for enacting legislation, this action plan is being proposed as a way of making a flawed structure functional. The detailed recommendations outlined in this action plan are intended as a practicable alternative to legislation and a way forward that respects the interests of the various stakeholders.

List of Recommendations

List of Recommendations

It is recommended that: 

Recommendation 1

It is recommended that a Defence Administrative Order and Directive supporting the Ministerial Directives be drafted and issued, acknowledging the principles of ombudsmanry and setting out the rationale that will guide the issuance of delegations for the Ombudsman by successive Deputy Ministers.

Recommendation 2

It is recommended that, where an audit finds that a member of the Ombudsman’s staff has improperly exercised delegated authorities, appropriate remedial measures be taken by the Ombudsman in consultation and agreement with the Deputy Minister, including the Deputy Minister’s withdrawal of the designation.

Recommendation 3

It is recommended that the delegation instruments for the office of the Ombudsman be self-contained and kept separate from those of the Department, as was previously the case.

Recommendation 4

It is recommended that the Ombudsman and Deputy Minister conclude a Memorandum of Understanding establishing periodic audits by the Department of the exercise of financial and human resource delegations by the office of the Ombudsman.

Recommendation 5

It is recommended that the Ombudsman’s business plan be submitted to and approved by the Minister of National Defence, to whom he reports, and that the Ombudsman’s fully justified annual budget submission be filed with the Department. 

Recommendation 6

It is recommended that the contracting thresholds for the office of the Ombudsman be reinstated, at a minimum, to pre-2015 amounts.

Recommendation 7

It is recommended that

  1. the expenditure threshold for travel and hospitality for the office of the Ombudsman be approved as submitted, understanding that the submission will include a margin to allow for contingencies;
  2. the hospitality threshold is approved in accordance with the Ombudsman’s submission; and
  3. exceptions be managed on a case by case basis by the Ombudsman and Deputy Minister.
Recommendation 8

It is recommended that the Department reinstate, in accordance with the Ministerial Directives, the practice of reporting the Ombudsman’s annual budget as a separate line item in the Department’s Main Estimates.

Recommendation 9

It is recommended that:

  1. delegations or sub-delegations, as the case may be, related to human resource and labour relations for the office of the Ombudsman be reinstated, at a minimum, to those existing before 2015 and more specifically with the authorities set out in Annex E of this report;
  2. the Ombudsman and the Deputy Minister conclude a Memorandum of Understanding establishing periodic audits of the human resource and labour relations files of the office of the Ombudsman by the Department; and
  3. where an audit finds non-compliance, corrective action is discussed and agreed upon by the Deputy Minister and Ombudsman.
Recommendation 10

It is recommended that the position of Human Resource Officer, internal to the office of the Ombudsman, be restored with full access to the necessary human resource systems of the Department. 

Recommendation 11

It is recommended that, where the expertise in human resource classification for small organizations is required and/or a unique job description is needed for a position in the office of the Ombudsman, the matter be outsourced to the Shared Human Resources Services offered by the Public Services and Procurement Canada.

Recommendation 12

It is recommended that:

  1. the designation be reinstated to authorize the Ombudsman to act as final level in the grievance process for staff of the office of the Ombudsman;
  2. a limitation be included to the effect that the Ombudsman shall recuse himself or herself from any grievance  related to his or her actions or decisions; and
  3. a third party outside of the departmental framework be designated as the final level in the grievance process for grievances related to the Ombudsman’s actions or decisions.
Recommendation 13

It is recommended that the authority for dealing with Informal Conflict Management Systems for the office of the Ombudsman be formally delegated to the Ombudsman.

Recommendation 14

It is recommended that the Policy on Harassment Prevention and Resolution (DAOD 5012-0) be amended to state that the harassment prevention and resolution program for the office of the Ombudsman will be managed by the Harassment Advisor internal to the office of the Ombudsman.

Recommendation 15

It is recommended that:

  1. the authority to deal directly with the Canadian Human Rights Commission be fully reinstated including the right to negotiate settlements and approve ex gratia payments;
  2. the Ombudsman keep the Director General Workplace Management advised with respect to milestones in the human rights complaints management process; and
  3. the Ombudsman’s General Counsel consult with the DND-CF Legal Advisor with respect to potential quantum of damages and establish a margin for negotiation and settlement for complaints under the Canadian Human Rights Act.
Recommendation 16

It is recommended that:

  1. the DAOD 7024-1 be amended to outsource any investigation under the Public Servants Disclosure Protection Act related to the office of the Ombudsman to a mutually acceptable third party;
  2. the Ombudsman, in consultation with the Deputy Minister where appropriate, take remedial measures where an investigation finds wrongdoing on the part of a member of the Ombudsman’s staff; and
  3. where a disclosure is alleged against the Ombudsman, a Governor in Council appointee, the matter be referred to a neutral third party outside of the departmental framework.
Recommendation 17

It is recommended that the Ombudsman’s designation for ATIP be renewed by the Minister of National Defence.

 


 

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