The Canadian ombuds/man/person: impartial and independent aspirational, achievable or impossible?

This study is the first of its kind to examine the conceptualization and the validity of the principles of impartiality and independence as they are understood and implemented by Canadian Ombuds of general jurisdiction. Twenty interviewees with substantive Ombuds experience drawn from all geographical sectors of Canada and from all areas of Ombuds practice, provided insightful commentary resulting in the finding that impartiality can only be understood, implemented and defended as aspirational in nature. As human beings can not purge themselves of their knowledge and experience that create negative or bad biases or predispositions, both known and unknown, this information colours all that is seen and influences all actions taken and conclusions reached. Simultaneously, it is also clear that there should not be any attempt to become a blank slate as the self-knowledge gained through introspection plus as much familiarity as is possible with the experiences had by those that are different from our own is necessary for thinking and behaving as impartially as possible.

Compelling evidence is provided to show that the aspiration to impartiality, which by definition will always be a work in progress, requires continual, concerted intellectual and behavioural attention and effort. In a similar vein, it is also revealed that the perception of a high degree of impartiality is based not on the so-called 'guarantees' provided by traditional indicia of structural independence but rather on the strength of the Ombuds' independent mindset and resultant ability to think and act independently and to be perceived as thinking and behaving impartially. The findings presented which include strategies for increasing impartiality as well as the conditions which can both contribute to and/or take away from the perception of independence will also benefit the legal field generally as they are readily applicable to other third party roles which are designated as independent and impartial, such as judges, adjudicators, arbitrators and mediators.

As the role of Ombuds has been created and implemented in an idiosyncratic manner across Canada, in order to provide the necessary contextual underpinning for this study, initially, I put forward a historical foundation. Here I propose a taxonomy detailing the three types of Ombuds that operate in Canada: the legislative, hybrid and organizational Ombuds. Again, using both historical and contemporary vantage points, I examine the theoretical constructs of impartiality and independence on a general basis, given their centrality to this study and to the legal field generally. In addition, I survey the data derived from empirical research from five major studies of judicial decision-making and one administrative tribunal. These results are complemented by data derived from ADR scholars and practitioners' examination of their own and others' practices. All of the foregoing material demonstrates how unrealistic it is to operate on the premise that impartiality is predicated primarily on a high level of structural independence.