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Audit Statute Law Amendment Act, 2004, S.O. 2004, c. 17 - Bill 18

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EXPLANATORY NOTE

This Explanatory Note was written as a reader’s aid to Bill 18 and does not form part of the law.  Bill 18 has been enacted as Chapter 17 of the Statutes of Ontario, 2004.

The Audit Act is amended to change the title of the Provincial Auditor to Auditor General and to make corresponding changes to the title of the Assistant Provincial Auditor and the name of the Office of the Provincial Auditor.  Complementary amendments are made throughout the Act and to other Acts.

The title of the Audit Act is changed to the Auditor General Act.  A complementary amendment is made to another Act.

Section 4 of the Act is re-enacted to specify that the term of office of the Auditor General is 10 years.  A person is not eligible to be reappointed.

The new section 9.1 of the Act authorizes the Auditor General to conduct special audits of grant recipients, other than municipalities, and of Crown controlled corporations and their subsidiaries.  The expressions “grant recipient” and “special audit” are defined in amendments to section 1 of the Act.  The scope of a special audit is specified.

The new section 9.2 of the Act authorizes the Auditor General to examine accounting records relating to reviewable grants received directly or indirectly by municipalities.  The expression “reviewable grant” is defined in amendments to section 1 of the Act.

Section 10 of the Act, concerning the Auditor General’s access to information and records, is re-enacted with technical amendments.  The new subsection 10 (3) specifies that a disclosure to the Auditor General under the Act does not constitute a waiver of specified types of privilege.

Section 11 of the Act re-enacts the current section 14 with technical amendments.  The new section 11.1 of the Act re-enacts the current section 11 with technical amendments.

The new section 11.2 of the Act re-enacts the current prohibition in subsection 13 (2) of the Act against obstructing the Auditor General and members of his or her Office in exercising powers and performing duties under the Act when conducting an examination.  The new section also prohibits obstruction with respect to a special audit.

Technical amendments are made to subsection 12 (2) of the Act, concerning the contents of the Auditor General’s annual report to the Speaker of the Assembly.

The new subsection 12 (3) of the Act describes the scope of the opinion that the Auditor General is required to give about the financial statements of Ontario.

Section 26 of the Act, concerning the conduct of the business of the Office of the Auditor General and the suspension, demotion, dismissal or release of employees from employment is re-enacted with technical amendments.  The amendments reflect corresponding amendments made to the Public Service Act in 1996 and to the regulations made under that Act.

The new section 27.1 of the Act, concerning confidentiality, re-enacts the current subsection 27 (2) with technical amendments.  The new subsection 27.1 (3) prohibits the disclosure of information and documents that are subject to specified types of privilege, unless the privilege holder consents.  The new section 27.2 of the Act governs the collection, use and disclosure of personal information by the Auditor General.

 

chapter 17

An Act respecting the
Provincial Auditor

Assented to November30, 2004

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Audit Act

1. The title of the Audit Act is repealed and the following substituted:

Auditor General Act

2. (1) The definition of “agency of the Crown” in section 1 of the Act is amended by striking out “Auditor” wherever it appears and substituting in each case “Auditor General”.

(2) The definition of “Assistant Auditor” in section 1 of the Act is repealed.

(3) The English version of section 1 of the Act is amended by adding the following definition:

“audit” includes a special audit; (“vérification”, “vérifier”)

(4) The definition of “Auditor” in section 1 of the Act is repealed.

(5) Section 1 of the Act is amended by adding the following definition:

“grant recipient” means an association, authority, board, commission, corporation, council, foundation, institution, organization or other body that receives a reviewable grant directly or indirectly; (“bénéficiaire d’une subvention”)

(6) The English version of the definition of “inspection audit” in section 1 of the Act is repealed.

(7) The French version of the definition of “inspection audit” in section 1 of the Act is repealed and the following substituted:

«vérification» S’entend en outre d’une vérification spéciale. Le verbe «vérifier» a un sens correspondant. («audit»)

(8) The definition of “Office of the Auditor” in section 1 of the Act is repealed.

(9) Section 1 of the Act is amended by adding the following definitions:

“reviewable grant” means a grant or other transfer payment from the Consolidated Revenue Fund, from an agency of the Crown or from a Crown controlled corporation; (“subvention susceptible d’examen”)

“special audit” means an examination with respect to the matters described in subclauses 12 (2) (f) (i) to (v). (“vérification spéciale”)

3. The Act is amended by adding the following section:

References to former names

1.1 A reference in an Act, regulation, order in council or document to a person or office by the former title of that person or the former name of that office set out in Column 1 of the following Table or by a shortened version of that title or name shall be deemed, unless a contrary intention appears, to be a reference to the new title of that person or the new name of that office set out in Column 2:

 

Column 1/Colonne 1

Column 2/Colonne 2

Former titles and names/Anciens titres et anciennes appellations

New titles and names/Nouveaux titres et nouvelles appellations

Assistant Provincial Auditor/vérificateur provincial adjoint

Deputy Auditor General/sous-vérificateur général

Office of the Provincial Auditor/Bureau du vérificateur provincial

Office of the Auditor General/Bureau du vérificateur général

Provincial Auditor/vérificateur provincial

Auditor General/vérificateur général

 

4. Section 2 of the Act is repealed and the following substituted:

Office of the Auditor General

2. The Office of the Auditor General consists of the Auditor General, the Deputy Auditor General and such employees as the Auditor General may require for the proper conduct of the business of the Office.

5. Section 3 of the Act is amended by striking out “Auditor” and substituting “Auditor General”.

6. Section 4 of the Act is repealed and the following substituted:

Term of office

4. (1) The term of office of the Auditor General is 10 years and a person is not eligible to be appointed to more than one term of office.

Same

(2) The Auditor General continues to hold office after the expiry of his or her term of office until a successor is appointed.

Removal

(3) The Auditor General may be removed from office for cause, before the expiry of his or her term of office, by the Lieutenant Governor in Council on the address of the Assembly.

7. Subsection 5 (1) of the Act, as amended by the Statutes of Ontario, 1999, chapter 5, section 1 and 1999, chapter 11, section 1, subsection 5 (2) of the Act, as re-enacted by 1999, chapter 11, section 1, and subsection 5 (3) of the Act are amended by striking out “Auditor” wherever it appears and substituting in each case “Auditor General”.

8. Section 6 of the Act is amended by striking out “Assistant Auditor” and substituting “Deputy Auditor General” and by striking out “the Auditor” and substituting “the Auditor General”.

9. Section 7 of the Act is amended,

(a) by striking out “Assistant Auditor” and substituting “Deputy Auditor General”; and

(b) by striking out “the Auditor” wherever it appears and substituting in each case “the Auditor General”.

10. Section 8 of the Act, as amended by the Statutes of Ontario, 2004, chapter 8, section 46, Table, is amended by striking out “as Auditor and Assistant Auditor” and substituting “as Auditor General and Deputy Auditor General”.

11. Subsections 9 (1), (2), (3) and (4) of the Act are amended by striking out “the Auditor” wherever it appears and substituting in each case “the Auditor General”.

12. The Act is amended by adding the following sections:

Special audits

Grant recipients

9.1 (1) On or after April 1, 2005, the Auditor General may conduct a special audit of a grant recipient with respect to a reviewable grant received by the grant recipient directly or indirectly on or after the date on which the Audit Statute Law Amendment Act, 2004 receives Royal Assent.

Exception

(2) Subsection (1) does not apply with respect to a grant recipient that is a municipality.

Crown controlled corporations, etc.

(3) The Auditor General may conduct a special audit of a Crown controlled corporation or a subsidiary of a Crown controlled corporation.

Examination of accounting records

9.2 (1) The Auditor General may examine accounting records relating to a reviewable grant received directly or indirectly by a municipality.

Same

(2) The Auditor General may require a municipality to prepare and submit a financial statement setting out the details of its disposition of the reviewable grant.

13. Sections 10 and 11 of the Act are repealed and the following substituted:

Duty to furnish information

10. (1) Every ministry of the public service, every agency of the Crown, every Crown controlled corporation and every grant recipient shall give the Auditor General the information regarding its powers, duties, activities, organization, financial transactions and methods of business that the Auditor General believes to be necessary to perform his or her duties under this Act.

Access to records

(2) The Auditor General is entitled to have free access to all books, accounts, financial records, electronic data processing records, reports, files and all other papers, things or property belonging to or used by a ministry, agency of the Crown, Crown controlled corporation or grant recipient, as the case may be, that the Auditor General believes to be necessary to perform his or her duties under this Act.

No waiver of privilege

(3) A disclosure to the Auditor General under subsection (1) or (2) does not constitute a waiver of solicitor-client privilege, litigation privilege or settlement privilege.

Power to examine on oath

11. (1) The Auditor General may examine any person on oath on any matter pertinent to an audit or examination under this Act.

Same

(2) For the purpose of an examination, the Auditor General has the powers that Part II of the Public Inquiries Act confers on a commission, and that Part applies to the examination as if it were an inquiry under that Act.

Stationing a member in a ministry, etc.

11.1 (1) For the purpose of exercising powers or performing duties under this Act, the Auditor General may station one or more members of the Office of the Auditor General in any ministry of the public service, agency of the Crown, Crown controlled corporation or grant recipient.

Accommodation

(2) The ministry, agency, corporation or grant recipient, as the case may be, shall provide the accommodation required for the purposes mentioned in subsection (1).

Prohibition re obstruction

11.2 (1) No person shall obstruct the Auditor General or any member of the Office of the Auditor General in the performance of a special audit under section 9.1 or an examination under section 9.2 and no person shall conceal or destroy any books, accounts, financial records, electronic data processing records, reports, files and all other papers, things or property that the Auditor General considers to be relevant to the subject-matter of the special audit or examination.

Offence

(2) Every person who knowingly contravenes subsection (1) and every director or officer of a corporation who knowingly concurs in such a contravention is guilty of an offence and on conviction is liable to a fine of not more than $2,000 or imprisonment for a term of not more than one year, or both.

Penalty, corporation

(3) If a corporation is convicted of an offence under subsection (2), the maximum penalty that may be imposed on the corporation is $25,000.

14. (1) Subsection 12 (1) of the Act is amended by striking out “Auditor” wherever it appears and substituting in each case “Auditor General”.

(2) Subsection 12 (2) of the Act is amended by striking out “Auditor” in the portion before clause (a) and substituting “Auditor General”.

(3) Clause 12 (2) (a) of the Act is repealed and the following substituted:

(a) the work of the Office of the Auditor General and on whether, in carrying on the work of the Office, the Auditor General received all the information and explanations required;

(4) Clause 12 (2) (c) of the Act is repealed and the following substituted:

(c) the examination of the consolidated financial statements of Ontario as reported in the Public Accounts;

(5) Clause 12 (2) (e) of the Act is amended by striking out “the Management Board of Cabinet” and substituting “the Treasury Board”.

(6) Clause 12 (2) (f) of the Act is amended by striking out the portion before subclause (i) and substituting the following:

(f) such matters as, in the opinion of the Auditor General, should be brought to the attention of the Assembly including, without limiting the generality of the foregoing, any matter relating to the audit or examination of the Crown, Crown controlled corporations or grant recipients or any cases where the Auditor General has observed that,

. . . . .

(7) The English version of subclause 12 (2) (f) (v) of the Act is amended by striking out “Auditor” and substituting “Auditor General”.

(8) Section 12 of the Act is amended by adding the following subsection:

Opinion on statements

(3) In the annual report in respect of each fiscal year, the Auditor General shall express his or her opinion as to whether the consolidated financial statements of Ontario, as reported in the Public Accounts, present fairly information in accordance with appropriate generally accepted accounting principles and the Auditor General shall set out any reservations he or she may have.

15. Sections 13 and 14 of the Act are repealed.

16. Section 15 of the Act is amended by striking out “Auditor” wherever it appears and substituting in each case “Auditor General”.

17. Section 16 of the Act is amended,

(a) by striking out “the Auditor” wherever it appears and substituting in each case “the Auditor General”; and

(b) by striking out “the Office of the Auditor” in the portion before clause (a) and substituting “the Office of the Auditor General”.

18. Sections 17 and 18 of the Act are amended by striking out “Auditor” wherever it appears and substituting in each case “Auditor General”.

19. Section 19 of the Act is amended by striking out “Office of the Auditor” and substituting “Office of the Auditor General”.

20. Section 20 of the Act is amended,

(a) by striking out “the Auditor” wherever it appears and substituting in each case “the Auditor General”;

(b) by striking out “the Office of the Auditor” wherever it appears and substituting in each case “the Office of the Auditor General”; and

(c) by striking out “Assistant Auditor” and substituting “Deputy Auditor General”.

21. (1) Subsection 21 (1) of the Act is amended,

(a) by striking out “Office of the Auditor” wherever it appears and substituting in each case “Office of the Auditor General”;

(b) by striking out “the Auditor” wherever it appears and substituting in each case “the Auditor General”; and

(c) by striking out “Provincial Auditor” in clause (a) and substituting “Auditor General”.

(2) Subsection 21 (2) of the Act is amended by striking out “Auditor” wherever it appears and substituting in each case “Auditor General”.

(3) Subsections 21 (3) and (4) of the Act are amended by striking out “Office of the Auditor” wherever it appears and substituting in each case “Office of the Auditor General”.

22. (1) Subsection 22 (1) of the Act is amended,

(a) by striking out “the Auditor” wherever it appears and substituting in each case “the Auditor General”;

(b) by striking out “the Assistant Auditor” and substituting “the Deputy Auditor General”; and

(c) by striking out “Office of the Auditor” and substituting “Office of the Auditor General”.

(2) Subsection 22 (2) of the Act is repealed and the following substituted:

Pension plan

(2) The Auditor General and the Deputy Auditor General are members of the Public Service Pension Plan.

23. Section 23 of the Act is amended by striking out “Auditor” wherever it appears and substituting in each case “Auditor General”.

24. Section 24 of the Act is repealed and the following substituted:

Delegation of authority

24. The Auditor General may delegate in writing to a person employed in the Office of the Auditor General the Auditor General’s authority to exercise any power or perform any duty other than his or her duty to report to the Assembly.

25. Subsection 25 (1) of the Act is amended by striking out “Office of the Auditor” in the portion before clause (a) and in clause (c) and substituting in each case “Office of the Auditor General”.

26. Section 26 of the Act is repealed and the following substituted:

Conduct of business and employee discipline

26. (1) The Auditor General may make orders and rules for the conduct of the internal business of the Office of the Auditor General and, subject to this section, may  for cause suspend, demote or dismiss an employee of the Office or may release such an employee from employment.

Suspension, etc., of employee

(2) Subject to subsection (3), if the Auditor General for cause suspends, demotes or dismisses an employee of the Office of the Auditor General or if the Auditor General releases such an employee from employment, the provisions of the Public Service Act and the regulations made under it that apply where a deputy minister exercises powers under section 22 of that Act apply, with necessary modifications. 

Same

(3) For the purposes of subsection (2), the Public Service Act and the regulations under it apply as if the Auditor General were a deputy minister, but the requirement that a deputy minister give notice to, or obtain the approval of, the Civil Service Commission does not apply.

Grievances

(4) An employee whom the Auditor General for cause suspends, demotes or dismisses may file a grievance with respect to the Auditor General’s decision.

Same

(5) The provisions of the regulations made under the Public Service Act that apply in relation to grievances authorized by those regulations apply with necessary modifications to a grievance authorized by subsection (4) as if the Auditor General were a deputy minister.

27. (1) Subsection 27 (1) of the Act is amended by striking out “the Auditor, the Assistant Auditor, any person employed in the Office of the Auditor or any person appointed to assist the Auditor” and substituting “the Auditor General, the Deputy Auditor General, any person employed in the Office of the Auditor General or any person appointed to assist the Auditor General”.

(2) Subsection 27 (2) of the Act is repealed.

28. The Act is amended by adding the following sections:

Duty of confidentiality

27.1 (1) The Auditor General, the Deputy Auditor General and each person employed in the Office of the Auditor General or appointed to assist the Auditor General for a limited period of time or in respect of a particular matter shall preserve secrecy with respect to all matters that come to his or her knowledge in the course of his or her employment or duties under this Act.

Same

(2) Subject to subsection (3), the persons required to preserve secrecy under subsection (1) shall not communicate to another person any matter described in subsection (1) except as may be required in connection with the administration of this Act or any proceedings under this Act or under the Criminal Code (Canada).

Same

(3) A person required to preserve secrecy under subsection (1) shall not disclose any information or document disclosed to the Auditor General under section 10 that is subject to solicitor-client privilege, litigation privilege or settlement privilege unless the person has the consent of each holder of the privilege.

Confidentiality of personal information

27.2 (1) No person shall collect, use or retain personal information on behalf of the Auditor General unless the personal information is reasonably necessary for the proper administration of this Act or for a proceeding under it.

Same

(2) No person shall collect, use or retain personal information on behalf of the Auditor General if other information will serve the purpose for which the personal information would otherwise be collected, used or retained.

Retention of information

(3) If the Auditor General retains personal information relating to the medical, psychiatric or physiological history of the individual or information relating to the individual’s health care or well-being, the Auditor General shall,

(a) remove all references in the information to the name of the individual and to other identifying information;

(b) retain the information by using a system of identifiers, other than the name of the individual and the other identifying information mentioned in clause (a); and

(c) ensure that the information is not,

(i) easily identifiable by a person who is not authorized to have access to it,

(ii) used or disclosed for purposes not directly related to the Auditor General’s duties under this Act,

(iii) published, disclosed or distributed in any manner that would allow the information to be used to identify the individual or to infer the individual’s identity, or

(iv) combined, linked or matched to any other information that could identify the individual, except if the Auditor General finds it necessary to do so to fulfil his or her duties under this Act.

Definition

(4) In this section,

“personal information” has the same meaning as in the Freedom of Information and Protection of Privacy Act.

29. Section 28 of the Act, as amended by the Statutes of Ontario, 2004, chapter 8, section 46, Table, is amended by striking out “the Office of the Auditor” and substituting “the Office of the Auditor General”.

30. Subsections 29 (1), (2) and (3) of the Act are amended by striking out “Auditor” wherever it appears and substituting in each case “Auditor General”.

Complementary Amendments

31. Subsection 11 (2) of the Ontario Lottery and Gaming Corporation Act, 1999 is amended by striking out “Audit Act” and substituting “Auditor General Act”.

32. Each Act specified in Column 1 of the Table to this section is amended by striking out “Provincial Auditor” wherever it appears in the provision or provisions specified in Column 2 and substituting in each case “Auditor General”.

 

TABLE

Column 1

Column 2

Act

Provision

AgriCorp Act, 1996

section 13

Agricultural Rehabilitation and Development Act (Ontario)

subsection 7 (1), section 8

Agricultural Research Institute of Ontario Act

section 6

Alcoholism and Drug Addiction Research Foundation Act

section 16

Algonquin Forestry Authority Act

section 18 in the portion before clause (a), clause 18 (b)

Arts Council Act

section 11

Cancer Act

section 12

Capital Investment Plan Act, 1993

subsections 13 (1) and (2)

Centennial Centre of Science and Technology Act

section 9

Community Psychiatric Hospitals Act

subsection 4 (8)

Courts of Justice Act

subsection 89 (9)

Credit Unions and Caisses Populaires Act, 1994

subsection 257 (2)

Crown Foundations Act, 1996

subsection 16 (2)

Development Corporations Act

section 26

Education Quality and Accountability Office Act, 1996

subsection 24 (3)

Election Act

subsection 113 (6)

Election Finances Act

section 8

Electricity Act, 1998

section 80

Environmental Bill of Rights, 1993

section 56

Environmental Protection Act

section 120

Farm Products Payments Act

subsection 5 (7)

Financial Administration Act

subsection 11 (3), paragraph 3 of subsection 11.4 (2)

Financial Services Commission of Ontario Act, 1997

section 14

Freedom of Information and Protection of Privacy Act

subsection 9 (2)

GO Transit Act, 2001

subsection 13 (2)

Legal Aid Services Act, 1998

subsection 65 (3)

Legislative Assembly Act

subsection 83 (3), sections 86 and 91

Liquor Control Act

section 6

Metropolitan Toronto Convention Centre Corporation Act

subsection 12 (3)

Ministry of Treasury and Economics Act

clause 13 (2) (c)

Niagara Parks Act

section 19

Northern Ontario Heritage Fund Act

section 8

Ombudsman Act

section 10

Ontario Agricultural Museum Act

section 13

Ontario Educational Communications Authority Act

section 11

Ontario Energy Board Act, 1998

subsection 4.8 (4)

Ontario Food Terminal Act

section 10

Ontario Heritage Act

section 16

Ontario Housing Corporation Act

section 12

Ontario Mental Health Foundation Act

sections 12 and 25

Ontario Municipal Economic Infrastructure Financing Authority Act, 2002

section 15

Ontario Northland Transportation Commission Act

section 39

Ontario Place Corporation Act

section 13

Ottawa Congress Centre Act

subsection 12 (3)

Pay Equity Act

Schedule, clause 1 (h)

Public Guardian and Trustee Act

section 17

Racing Commission Act, 2000

section 14

Securities Act

subsection 3.9 (4)

Social Contract Act, 1993

subsection 9 (2)

St. Clair Parks Commission Act, 2000

subsection 11 (3)

St. Lawrence Parks Commission Act

section 16

Toronto Area Transit Operating Authority Act

section 12

Toronto Islands Residential Community Stewardship Act, 1993

subsection 12 (12)

University Foundations Act, 1992

subsection 9 (2)

Waterfront Regeneration Trust Agency Act, 1992

subsection 13 (3)

Workplace Safety and Insurance Act, 1997

subsections 168 (3) and 169 (1)

 

Commencement and Short Title

Commencement

33. This Act comes into force on the day it receives Royal Assent.

Short title

34. The short title of this Act is the Audit Statute Law Amendment Act, 2004.