Limiting Duplicate Investigations

The office of the Patient Ombudsman was created to facilitate accountability for health care providers. The Patient Ombudsman (which is separate from the Ontario Ombudsman’s office) can investigate complaints about the care received and can also initiate investigations on its own. However, given that several other entities also hold health care providers accountable, the enabling legislation included an unusual provision preventing the Patient Ombudsman from commencing investigations “in connection with a matter that is within the jurisdiction of another person or body or is the subject of a proceeding”.

An Ontario Court has held that this provision against duplicate investigations should be given full effect. In Governing Council of the Salvation Army in Canada v. Patient Ombudsman, 2022 ONSC 6563 (CanLII), a long-term care home objected to a Patient Ombudsman’s investigation of its preparedness for and response to COVID-19 on the basis that three other investigations or proceedings were already in place; namely: an independent commission appointed by the Ontario government, an Ontario Ombudsman’s investigation into the oversight of long-term care homes by the government, and two class action proceedings on behalf of residents of long-term care homes.

The Patient Ombudsman argued, among other things, that the focus of its investigation was different from the other investigations and proceedings. Its investigation was intended to look at “how the COVID-19 outbreaks affected the care and health care experience of residents and how the actions or inactions of individual LTCHs as well as common system factors impacted residents’ care and health care experience.” The Court concluded that the phrase “in connection with” was intended to be broadly interpreted, demonstrating “a legislative balancing between the [Patient Ombudsman]’s functions and the burden that a multiplicity of proceedings relating to the same matter could pose to health sector organizations and actors.” The Patient Ombudsman’s investigation was quashed.

This case provides some clarity as to how various oversight bodies involved in health care regulation relate to each other.

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