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The Office of the

Lt!iJm budsperson
B.C.s Independent Voice For Fairness

Complaints/Enquiries:

947 Fort Street

Fax: (250) 387-0198

Govt

www.bcombudsperson.ca

March 3, 2016
File: $YS15-1003
Via Email: gcarolinecarolinelaw. ca
jgislason@carolinelaw.ca
Mr. Gary Caroline
Ms. Joanna Gislason
Caroline & Gislason LLP
15 Gore Ave
Vancouver BC V6A 2Y8
Dear Mr. Caroline and Ms. Gislason:
I write in response to your letter dated February 22, 2016.
When the Select Standing Committee on Finance and Government Services
(Select Standing Committee) decided to refer this investigation to my office on
July 29, 2015 under section 10(3) of the Ombudsperson Act, it triggered a
statutory duty under s. 10(4) to conduct the investigation on the terms set out
in the special directions. My staff and I are required to carry out the Select
Standing Committees referral in accordance with the statutory mandate. We
intend to proceed, and we will conduct a thorough, impartial and independent
investigation.
You have reiterated your earlier request for disclosure of several categories of
documents. As I made clear to the Select Standing Committee from the outset,
and as understood by the Select Standing Committee when it made the
decision to refer this matter to my office, this investigation is neither a partydriven judicial proceeding nor a public inquiry. It is an Ombudsperson
investigation, still in its early stages. The very nature of an Ombudsperson
investigation is that such an investigation is conducted in private. I bring your
attention to the following provisions in the Ombudsperson Act:
9(4) The Ombudsperson and every person on the staff of the Ombudsperson
must, subject to this Act, maintain confidentiality in respect of all matters that
come to their knowledge in performing their duties under this Act...
(6) An investigation under this Act must be conducted in private unless the
Ombudsperson considers that there are special circumstances in which public
knowledge is essential in order to further the investigation.

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Mr. Gary Caroline & Ms. Joanna Gislason

(7) Despite this section, the Ombudsperson may disclose or authorize a member
of his or her staff to disclose a matter that, in the opinion of the Ombudsperson,
is necessary to
(a) further an investigation,
(5) prosecute an offence under this Act, or
(c) establish grounds for conclusions and recommendations made in a
report under this Act.

As you will see, the only statutory exception to a private investigation at this
stage exists where the Ombudsperson concludes that personal or public
disclosure is necessary to further an investigation.
The decision whether to disclose a document to a particular witness at this
early stage of the investigation, and based on the statutory test, can only be
made on a case-by-case basis. We will therefore notify you in due course as to
the documents we intend to provide to your clients for their review in advance
of any witness interviews, subject of course to their confirming that the
disclosure is done on the basis that the documents are to be used by them
solely for the purposes of furnishing information in our investigation.
You have expressed concerns about the amounts that the government has
decided to subsidize witnesses for their legal fees. Our office has to the best of
my knowledge never reimbursed legal fees incurred by witnesses in providing
information to our office and in fact, legal counsel are rarely involved in the
fact-gathering stages of our investigations. In this matter however, government
has presumably as a result of the interest expressed by the Select Standing
Committee established a process for payment of legal fees. The policy
question as to public subsidy amounts provided by government for witnesses is
not for me to determine. I will observe only that it is my understanding that the
indemnity policy is the same for all witnesses up to $1,000 for process advice
and up to $25,000 if a person has, later in the investigation, received a notice
under s. 17 of the Omhudsperson Act:

17 If it appears to the Ombudsperson that there may be sufficient grounds for


making a report or recommendation under this Act that may adversely affect an
authority or person, the Ombudsperson must, before deciding the matter,
(a) inform the authority or person of the grounds, and
(b) give the authority or person the opportunity to make representations, either
orally or in writing at the discretion of the Ombudsperson.

Given that lawyer participation is not a general feature of Ombudsperson


investigations even a modest amount for process advice to cover the cost of
counsel reviewing our witness information package and providing advice is, as
far as we can determine, unprecedented.

Mr. Gary Caroline & Ms. Joanna Gislason

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No person has received notice under s. 17. Thus, at this time, no person is
entitled to the indemnity applicable to that notice.
Our interest in discussions with government as they established the indemnity
has been to protect the integrity and confidentiality of our investigation by
ensuring that, through the disclosure requirements normally associated with
an indemnity, the identity of witnesses we examine is not disclosed outside of
what we may include in our final report. That required unique provisions be
included in the indemnity. We were able to achieve that goal and the identity of
witnesses who receive the process advice indemnity will not be disclosed to
government or publicly.
As you know, it is our policy to issue summonses to all witnesses in this
investigation. Please advise whether you are in a position to accept service of
the summons on your clients behalf when they are issued. In addition, we
await a reply to our letter of February 22, 2016 inquiring about dates that your
clients are not available.
If you or your clients have specific questions about their participation in our
investigation that are not addressed by the Information for Witnesses
package, we would be happy to respond.
Yours sincerely,

Jay Chalke
Ombudsperson
Province of British Columbia