Yukon Ombudsman files court petition after department refuses access to documents

The Yukon Ombudsman has turned to the courts after the territorial government's family and children's services branch refused to give her access to documents she needs for an investigation. 

Diane McLeod-McKay filed a petition to the Yukon Supreme Court on Dec. 11. 

It comes more than a year after her office received a complaint from a father alleging the branch had put both himself and his child at risk by failing to notify him about a risk of violence associated with the mother's partner.

According to the petition, the Department of Health and Social Services has so far refused to provide the ombudsman's office with documents it needs to investigate the issue, claiming it can't under the territorial Child and Family Services Act.

McLeod-McKay has also been unable to speak directly to a deputy minister or the minister, with letters she sent in March, May and August asking if the department would comply with notices to produce documents being rerouted to Yukon government lawyers instead.

Because of that, the father's complaint is still outstanding. 

'Require the disclosure of full and unredacted documents'

The petition seeks declarations that as ombudsman, she has the jurisdiction to question authorities under investigation directly, without needing to communicate via their lawyers, and to "require the disclosure of full and unredacted documents" except in limited cases. 

It also asks for a declaration that her jurisdiction to investigate complaints specifically against the family and children's service branch includes the right to access documents in the possession of the Department of Health and Social Services.

The Yukon government, as of Dec. 15, had not yet filed a reply to the petition. Department of Justice spokesperson Fiona Azizaj wrote in an email that the government would not be commenting on the case as it's before the courts. 

McLeod-McKay, who's also the territory's information and privacy commissioner and public interest disclosure commissioner, told CBC that resorting to legal action to obtain documents isn't something she's had to do in any of her roles before. 

She described it as a "unique" situation due to provisions in the Child and Family Services Acts about disclosing records, but said she believed the mandate and authority granted to her under the Ombudsman Act gives her the power to access the files she needs. 

"Because of our disagreement and my obligation to conduct the investigation, I was essentially left with no choice but to seek the court's direction on the authority of the ombudsman as it relates to this matter," she said. 

"... In my view, it is very important to clarify the authority of the ombudsman to access records held by child and family services, both to preserve the independence of our office and our ability to conduct investigations into complaints made about child and family services." 

This isn't the first time one of McLeod-McKay's offices has run into roadblocks when investigating the Department of Health and Social Services. In January, as privacy commissioner, she slammed the department for ignoring multiple requests for updates on two Health Information Privacy and Management Act complaint files. 

A hearing date for the petition hasn't been set yet.