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Ombudsman’s oversight expanded to cover school boards

The Ontario ombudsman’s new powers over school boards appear to be unnecessary given the built-in oversight and appeal processes already encompassed in the province’s education system, says education lawyer Sheila MacKinnon.

Among other things, the recent passing of Bill 8 – the Public Sector and MPP Accountability and Transparency Act – gives provincial ombudsman André Marin expanded oversight over municipalities, universities and school boards, the Toronto Star reports.

Marin hoped to also bring hospitals within his purview, but the government decided to instead appoint a patient ombudsman, who will not be an independent officer of the legislature like Marin, says the Star.

MacKinnon, partner with Shibley Righton LLP, questions whether the extra oversight is necessary in the education sector.

“This sector is very complex, so now you’re going to have to have someone within the ombudsman’s staff who understands how the education system works. It’s not just delivery of education; it involves the physical and mental health of students,” says MacKinnon. “These are growing children. They go into the system at four and they come out at 18. Lots of changes happen to a child during that time.”

When it comes to special education, MacKinnon says the system is “highly specialized.”

With respect to school boards, the new rules stipulate that existing appeal or hearing processes within the system must be followed before the ombudsman can investigate a complaint.

The amendment to subsection 14 (4) of the Ombudsman Act says the ombudsman may not investigate where there is, “under any by-law or resolution of a school board, a right of appeal or objection, or a right to apply for a hearing or review, on the merits of the case to a designated school board official or employee, or to a committee constituted by or under a by-law or resolution of the school board until that right of appeal or objection or application has been exercised in the particular case, or until after any time for the exercise of that right has expired.”

Because the system already has extensive oversight in the form of in-depth internal reviews and appeals to third parties, and the ombudsman cannot step in until that process runs its course, MacKinnon questions how effective the new presence will be balanced against the cost.

“What will be left over for the ombudsman to do?” says the education lawyer. “School boards are unlike other government organizations where an ordinary taxpayer may be trying to wade through policy decisions and there’s no clear process for review. There are protections built in to the education system."

According to the ombudsman’s website, more than 20,000 complaints about MUSH – municipalities, universities, schools, hospitals – organizations have had to be turned away by the office since 2005.

“In fairness, I don’t know what the complaints were that could not be dealt with,” says MacKinnon, noting it’s not surprising that individuals have come forward. “It’s a service being delivered and parents are not going to agree at times with the local school and school board.”

But MacKinnon points to the elected school board trustees, who are “considered the voice in the advocacy of public education,” as being part of the support network for parents.

“They help parents in their inquiries – part of their role is to be there and make sure, if the parent isn’t aware of the system processes, that they’re guided through.”

The bill also gives the government greater say over public sector executive compensation at the senior levels, says MacKinnon.

“In essence, when it comes to setting compensation, this will take it out of the hands of the trustees,” she says. “School boards won’t have as much latitude or say in what the salary and benefits will be for their senior executives.”

It’s not clear at this point how great of an impact the change will have on senior employees, says MacKinnon.

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