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OVERVIEW
Section 56 establishes the process to be followed by the Commissioner when conducting an inquiry to settle a matter under review.
SECTION REFERENCE
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56
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(1)
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If the matter is not referred to a mediator or is not settled under section 55, the commissioner
may conduct an inquiry and decide all questions of fact and law arising in the course of the inquiry.
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(2)
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An inquiry under subsection (1) may be conducted in private.
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(3)
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The person who asked for the review, the head of the public body concerned and any person given a copy of the request for a review must be given an opportunity to make representations to the commissioner during the inquiry.
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(4)
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The commissioner may decide
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(a)
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whether representations are to be made orally or in writing, and
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(b)
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whether a person is entitled to be present during or to have access to or to comment on representations made to the commissioner by another person.
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(5)
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The person who asked for the review, the head of the public body concerned and any person given a copy of the request for a review may be represented at the inquiry by counsel or an agent.
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(6)
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An inquiry into a matter under review must be completed within 90 days after receiving the request for the review.
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SUMMARY
Section 56 provides for the commissioner’s discretion to decide
if a request for review will proceed to inquiry and if an inquiry is granted, to decide on matters of fact and law, to require either written or oral presentations, and to decide on the entitlement of persons to have access to or make comments on others’ representations to the Commissioner.
INTERPRETATION
In an inquiry, the person requesting the review, the head of the public body and any other person given a copy of the request for review are entitled to make representations to the commissioner and to be represented by counsel or an agent. At the Commissioner’s discretion, the inquiry may be conducted in private. The inquiry must be completed within 90
days after the request for review is received.
The Commissioner’s powers in conducting investigations, audits and inquiries are set out in section 44.
No party has an absolute right to be present during another party’s presentations. The Commissioner may decide whether one person is entitled to be present, have access to or comment on representations made by another person. For example, in many cases it will be necessary to disclose the contents of a record during the review process in order to show why the record was withheld. The Commissioner would likely decide that the applicant could not be present during this part of the process as it would provide the applicant with access to the information and thereby defeat the intent of the Act.
The Commissioner may compel witnesses to attend an inquiry and answer questions. The Commissioner has the same powers as a judge of the Supreme Court to deal with failures to comply with an attendance or production order. These include the power to hold a person in contempt and to obtain the assistance of law enforcement officers to compel attendance or production.
The 90 day time limit encompasses all elements of the complaint process, including mediation and commissioner’s inquiry.
REFERENCES
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