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Meetings Investigator

The City’s Meetings Investigator is an officer appointed by City Council to review requests for investigation regarding whether a meeting of City Council, a local board or a committee of either was properly closed to the public.

Reports of the Meetings Investigator

Anyone wishing to question the appropriateness of a meeting that was closed in full or in part to the public can complete and submit a Request for Investigation.  The Meetings Investigator will decide whether an investigation is warranted and if so, conduct his investigation and submit his findings and recommendations to an open meeting of City Council or the local board.

Reports

Report of the Meeting Investigator regarding the First Meeting of the Election Compliance Audit Committee, held on April 18, 2011

Background

Council appointed a Meeting Investigator as required by the Municipal Act on November 28, 2007 and extended his appointment for the 2010-2014 Term of Council on December 8, 2010. The Meeting Investigator is independent of Council and reports his findings directly to Council. His function is to investigate in a confidential manner, any complaint that the municipality or a local board of the municipality has failed to comply with the open meeting provisions of the Municipal Act or its own procedure by-law.

The complaint

On April 26, 2011, the Meeting Investigator received a complaint indicating that the newly formed Election Compliance Audit Committee (“the Committee”) had gone into closed session at its first meeting on April 18th immediately following a request by counsel retained by the Candidate in the recent municipal election for an adjournment of the hearing. The Complainant indicated that he believed the Committee based its decision to grant a two week adjournment on irrelevant and improper considerations. In particular, the Complainant alleged that the Committee’s decision to grant a two week adjournment was motivated by a desire to save embarrassment to a named candidate in the approaching federal election.

The Meeting Investigator’s jurisdiction

As a preliminary matter the Meeting Investigator looked at the legislation and Council proceedings establishing the Committee to determine whether the Committee falls under the Meeting Investigator’s jurisdiction. The jurisdiction of the Meeting Investigator is limited to a review of the procedure followed by municipal councils and “local boards”. A review of the Municipal Elections Act, 1996 and Council proceedings of May 10 and July 14, 2010 indicates that, while called a committee, the Election Compliance Audit Committee does not meet the definition of a “committee” in section 238 of the Act. It does, however, fall within the exceptionally wide definition of a “local board” found in section 1 of the Act. This definition is as follows:

“local board” means a municipal service board, transportation commission, public library board, board of health, police services board, planning board, or any other board, commission, committee, body or local authority established or exercising any power under any Act with respect to the affairs or purposes of one or more municipalities, excluding a school board and a conservation authority.

As section 239(1) applies to meetings of all local boards as defined above, its procedure falls squarely under the jurisdiction of the Meeting Investigator.

The investigation

In the conduct of his investigation, the Meetings Investigator reviewed the Committee’s Agenda for its first meeting on April 18, 2011 and the Report to the Committee from the City Clerk and Solicitor dated April 8, 2011 which included the Request for a Compliance Audit and an Extract from the Municipal Elections Act. The Meeting Investigator also listened to the taped recording of the open session of the meeting and read the record of the in camera session. Interviews were then conducted with the City Clerk and Solicitor, the Deputy City Clerk and all members of the Committee. The Complainant declined the Investigator’s invitation to elaborate further on his written Request for Investigation.

Rules governing the Committee’s procedure

The procedure of the Committee is governed by the procedure set out in section 239 of the Municipal Act and the Rules of Procedure adopted by the Committee at its first meeting.

  1. The Procedure set out in section 239 of the Municipal Act

    239 Meetings Open to the Public – Except as provided in this section, all meetings shall be open to the public.

    Exceptions
    (2)  A meeting or part of a meeting may be closed to the public if the subject matter being considered is,
    a. the security of the property of the municipality or local board;
    b. personal matters about an identifiable individual, including municipal or local board employees;
    c. a proposed or pending acquisition or disposition of land by the municipality or local board;
    d. labour relations or employee negotiations;
    e. litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board;
    f. advice that is subject to solicitor-client privilege, including communications necessary for that purpose;
    g. a matter in respect of which a council, board, committee or other body may hold a closed meeting under another Act. 2001, c. 25, s. 239 (2).

    Other Criteria
    (3)  A meeting shall be closed to the public if the subject matter relates to the consideration of a request under the Municipal Freedom of Information and Protection of Privacy Act if the council, board, commission or other body is the head of an institution for the purposes of that Act. 2001, c. 25, s. 239 (3).

    Educational or Training Sessions
    (3.1)  A meeting of a council or local board or of a committee of either of them may be closed to the public if the following conditions are both satisfied:
    1. The meeting is held for the purpose of educating or training the members.
    2. At the meeting, no member discusses or otherwise deals with any matter in a way that materially advances the business or decision-making of the council, local board or committee. 2006, c. 32, Sched. A, s. 103 (1).


    The Act also contains the following procedural requirement to be followed when deciding to move in camera.

    Resolutions

    (4)  Before holding a meeting or part of a meeting that is to be closed to the public, a municipality or local board or committee of either of them shall state by resolution,
    the fact of the holding of the closed meeting and the general nature of the matter to be considered at the closed meeting; or
    in the case of a meeting under subsection (3.1), the fact of the holding of the closed meeting, the general nature of its subject-matter and that it is to be closed under that subsection. 2001, c. 25, s. 239 (4); 2006, c. 32, Sched. A, s. 103 (2).

  2.  
  3. The Rules of Procedure Adopted by the Committee
    Both the Municipal Elections Act and section 238 of the Municipal Act require the Committee to have its own “administrative practices and procedures” in the words of the Municipal Elections Act or “procedure by-law” in the words of the Municipal Act. The Rules of Procedure adopted by the Committee meet this requirement.

    Section 6 of the Rules of Procedure adopted by the Committee expressly incorporates the open meeting provisions of the Municipal Act in the following words:

    6. Meetings
    (6) Meetings of the Committee shall, subject to the exceptions found in the Municipal Act,2001, be open to the public.


    As many of the exceptions to the open meeting rule set out in section 239 (1) of the Municipal Act are unlikely to apply to matters coming before the Committee, the drafters of the Committee’s Rules of Procedure took the prudent step of attempting to simplify these requirements when it drafted section 17.

    Part III Deliberations and Rendering a Decision
    17. Deliberations
    (1) Deliberations shall be open to the public except as follows:
    At any time where the Committee wishes to receive legal advice from Committee Counsel that is subject to solicitor-client privilege. At any time where the Committee, faced with personal matters about an identifiable individual, is of the opinion that such personal matters may be disclosed at the meeting but where the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the general principle that the meeting be open to the public.
    (2) A motion to close a meeting or part of a meeting to members of the public shall state:
    The fact of the holding of the closed meetings; and
    The general nature of the matter to be considered at the closed meeting by reference to the specific issue to be considered at the closed meeting.


    In the Meeting Investigator’s opinion the resulting wording adequately sets out the only exceptions in the Municipal Act which would likely arise before the Committee. The wording also goes a step further, and incorporates almost all of those provisions going beyond the Act’s minimum requirements which Council has approved in its own Procedure By-law. The one apparent omission is Council’s procedure for rising and reporting set out in subsection (13) (7) of the Procedure By-law.

    The Investigator has considered, and rejects, the suggestion that the Committee’s procedure is also governed by the provisions of the Statutory Powers and Procedure Act [1] and the City’s Procedure By-law [2].

The procedure followed by the Committee

Immediately following a slide presentation by the City Clerk and Solicitor outlining the duties and procedure to be followed by the Committee, the Committee convened its first meeting. The first two items on the agenda were the appointment of a Chair and Vice-Chair and the adoption of the Rules of Procedure. The next item was the substantive matter of the application by an elector for an audit of the campaign expenses of a successful candidate in the November municipal election. The candidate was not present but was represented by counsel who requested an adjournment (or more accurately, a deferral) of the item due to a lack of opportunity for counsel to prepare for the hearing. The Chair first announced that the Committee would retire for five minutes to consider the matter. When someone indicated that a motion to resolve in camera would be in order, the Chair asked a member to make the motion. With the assistance of staff from the Clerk’s office, member Asselin then moved:

That the Election Compliance Audit Committee resolve in camera pursuant to Rule 7 (a) Solicitor-Client privilege and (b) personal matters concerning an identifiable individual to consider matters relating to the consideration of matters in relation to the Application by [the named Applicant} and the request to defer this item.

One member questioned the need to resolve in camera to discuss an adjournment but his well-intentioned question went unanswered and the motion was immediately put to a vote. The motion then carried with one dissent.

While in closed session the Committee received some advice from its independent counsel. The recollection of various members differs, but the advice may have consisted of a simple explanation of what the Rules of Natural Justice are, or may have gone further and indicated what effect these Rules had on the application for adjournment which was before them. The closed session concluded with a discussion of members’ agendas and dates when all members would next be available for another meeting. There is no indication that in discussing the request for an adjournment, the Committee gave any consideration to the effect the Committee’s decision might have on the Candidate, or anyone not a party to the proceedings before them.

When the Committee resumed in open session there was no report by the Chair of what had transpired in closed session. Rather, the Chair immediately advised that the Committee was ready to make its decision or had made its decision, (it is not clear which), and asked the Applicant and counsel for the Candidate if they wished to make any further submissions. When no further submissions were forthcoming, a member moved the meeting be adjourned to May 3 at 4 o’clock in the afternoon. This Motion carried unanimously.

Comments on the Committee’s procedure

    1. The Motion to go in camera

      The provision in the Municipal Act that a motion be passed prior to going in camera requires that the motion state the general nature of the subject matter to be discussed. The Rules of Procedure adopted by the Committee go slightly further in requiring (like Council’s Procedure By-law) that the motion reveal not only “the general nature” of the matter to be considered but also the “specific issue” to be considered. The motion passed by the Committee stated the general nature of the matter to be considered (the receipt of legal advice), but failed to state the “issue” (the question on which advice was being sought). In this respect, the procedure followed was faulty. It may also have contributed to the present Complainant’s suspicion that the Committee took improper factors into consideration in reaching its decision behind closed doors
    2. The subject matter discussed

      Both the Municipal Act and the Rules of Procedure adopted by the Committee allow a body such as this Committee to receive advice from its solicitor in camera. This exception to the open meeting rule exists for good and historical reasons. The drafters of the Act knew that occasionally the public interest in keeping legal advice confidential outweighs the interest the public has in observing its council and boards in action. It accordingly provided that a local body could (not must) consider these matters in camera. The right to go in camera to consider these matters should not be exercised in every case a local body wishes to obtain the advice of its legal counsel. Rather, it should only be resorted to after the local body has balanced the public interest which needs to be protected with the interest everyone has in observing the conduct of public business by their representatives. Engaging in this balancing process will, as the City Clerk and Solicitor explained to the Committee prior to the commencement of the hearing, seldom result in a finding that recourse to in camera proceedings is justified.

      The nature of the balancing act that must be done when exercising the discretionary right to go in camera has been discussed in previous reports by this Investigator. Although the process was not expressly incorporated in the Rules adopted by the Committee, the Meeting Investigator understands that the City Solicitor did note in his presentation that he very rarely found it necessary to give his legal advice to Council in camera.

      There is no evidence that the Committee went through any balancing process in this case. If it had, the Committee surely would have concluded that there was nothing to prevent receiving the legal advice it required in open session.
    3. Rising and Reporting

      The presentation by the City Clerk and Solicitor contained two provisions relating to Rising and Reporting:

      “When the in camera session is completed, the Committee moves a motion to ‘Rise and Report’. When in open session, the Chair provides a brief verbal summary of what the Committee addressed in the closed session and voted on as appropriate.”

      These provisions reflect previous recommendations by this Investigator and the procedure currently followed by Council. Unfortunately, the provisions were not incorporated in the Rules of Procedure adopted by the Committee and, possibly for this reason, the procedure was not followed by the Committee. Once again, compliance with these provisions may well have provided sufficient assurance to the Complainant in this case that the Committee had not engaged in any improper conduct while behind closed doors.

Conclusions

  1. In the absence of some suggestion as to how the receipt of legal advice in open session could be considered contrary to the public interest in this case, the Committee erred in its decision to go in camera.
  2. The failure of the Committee to state the specific matter with respect to which legal advice was being sought, was both contrary to the Committee’s own Rules and a likely source of suspicion that the Committee was going to do more than it did.
  3. The failure of the Committee to “Rise and Report” in the manner followed by City Council may well have given rise to concerns that the Committee acted improperly behind closed doors.
  4. There is no evidence of improper conduct by the Committee while in closed session.

Recommendations

The newly created Election Compliance Audit Committee has an important role to play in enhancing public confidence and respect for the election process in Ontario municipalities. This public confidence in the election process must begin with confidence that the Committee itself is properly and openly conducting its business. Appearances may not be everything. But they are important if faith is to be maintained in the system. With this in mind, the Meeting Investigator recommends the following actions:

  1. The Committee’s Rules of Procedure be revised to provide that the Committee may go in camera to receive legal advice from Committee counsel when the public interest outweighs the desirability of adhering to the general principle that the meeting be open to the public.
  2. That a requirement for rising and reporting be incorporated in the Committee’s Rules of Procedure.
  3. That the Committee receive further guidance on the principles of open meetings.

All of which is respectfully submitted, this 20th day of May, 2011.

Douglas R. Wallace
Meeting Investigator

[1]

The Meeting Investigator concurs with the opinion expressed by one member of the Committee that the Committee was not exercising a “statutory power of decision” when deciding whether to grant or reject an application for an audit, as no legal right of any person or party was before the Committee for final decision. Nor was it required by law to hold a hearing. At this stage of the proceedings at any rate, it was performing an investigatory or administrative role rather than a judicial one. Any doubt in this regard is removed by section 3(2) of the Act which states that the Act does not apply to proceedings of “one or more persons required to make an investigation and to make a report, with or without recommendations, where the report is for the information or advice of the person to whom it is made and does not in any way legally bind or limit that person in any decision he or she may have power to make”.

[2]

Section 1 of the By-law provides that “the proceedings of Council and the Committees thereof…shall be governed by the provisions of the Municipal Act and the rules and regulations contained in this By-law”. Although this committee was created BY Council, it is not a committee of Council, and the provisions of this by-law therefore do not govern the proceedings of this committee unless specifically incorporated in the Committee’s own Rules of Procedure.

Report to the Council of the City of regarding the in camera meeting of the transit committee of April 21, 2010 and the council meeting of May 26, 2010: General Accounts Write-Offs 2009

The request

The Meetings Investigator received a request to investigate the propriety of a closed meeting of the Transit Committee held on April 21, 2010. The reasons for the request were stated as follows:

“I don’t understand why the ‘General Accounts and Write-Offs 2009’ discussions occurred in camera. There is no supporting documentation for these items and it’s not clear why they needed to be discussed in secret. The “Settlement to resolve litigation matter including matters before administrative tribunal affecting the city” is also extremely vague. I would argue that the sentence says nothing at all. What settlement? What Tribunal? What litigations? What matters?”

The Request raises the following issues:

  1. Does the Notice of the Meeting and/or the Motion passed at the open session of the Committee prior to going in camera adequately set out the subject matter to be discussed and the reasons for going in camera?
  2. Was there supporting documentation before the Committee?
  3. Does the subject matter of the Report fall within the exceptions to the general rule that matters must be dealt with in open session?

The investigation

The following documents were reviewed to determine whether there had been compliance with the provisions of the Municipal Act and Procedure By-law:

  1. Transit Committee Agenda for April 21, 2010
  2. Transit Committee Report 38B (In Camera)
  3. Motions at Committee to go in camera and to resume in open session
  4. Confidential Minutes 4 of the Transit Committee, Monday, April 21, 2010.
  5. Minutes of open Transit Committee Meeting of April 21, 2010.
  6. Council Agenda, May 26, 2010
  7. Minutes of the open Meeting of Council, May 26, 2010
  8. Delegation By-law 2009-231
  9. Procedure By-law
  10. Handbook/Help file and Committee Checklists for the receipt of reports and the preparation of agendas
  11. Letter dated September 22, 2009 from the City Clerk and Solicitor to Information and Privacy Commissioner relating to Complaint No. M109-6

Interviews were also held with the Deputy City Treasurer, Revenue, the City Clerk and Solicitor, the Deputy City Clerk and staff of the City Clerk and City Solicitor Department including the Manager, Elections and MFIPPA, and the Research Officer, Legislative Services.

Factual background

The subject of the report before the Committee can be described as “Amounts the City Treasurer wrote off as uncollectible under the Delegation of Authority By-law.” These amounts fell within two categories: (1) the amount owing from a company (Infoplace Ticket Centre Ltd. or “ITCL”) that went bankrupt and (2) smaller amounts owing from some forty-nine (49) other companies and individuals. The information with respect to the bankruptcy of ITCL was reported to the Committee and Council pursuant to an earlier specific request by the Committee. The information with respect to the write-off of all other accounts was reported to Committee pursuant to section 21 of the Delegation of Authority By-law. The by-law does not require this type of report to be forwarded on to Council but this seems to have become the normal practice.

The report itself is now a public document having been approved for release “30 Days After Final Settlement is Reached” when it was received by Council on May 26. It sets out the amount which was owed to the City when ITCL went into bankruptcy and explains that negotiations between counsel representing all major creditors and the Trustee in Bankruptcy led to an order of the Superior Court of Justice setting out the division of all available funds between creditors. It also notes that some forty-nine (49) other accounts totalling $53,000.00 were listed in a document on file with the City Treasurer. These accounts were also deemed uncollectible and written off.

The Minutes of the In Camera meeting of the Committee confirm that the only discussion that took place in camera consisted of requests for details concerning the amounts set out in the report, the potential for further recovery and steps which might be taken to prevent a reoccurrence.

The Minutes of the open session of the Committee meeting indicate that the in camera meeting lasted ten minutes. Questions were asked of the City Treasurer, the Deputy City Treasurer Revenue, the General Manager of Transit Services, the Deputy City Solicitor, and legal counsel from the City Clerk and Solicitor Department.

Findings

  1. Alleged deficiencies in the description of the matter to be dealt with at the Committee and the reasons for going in camera.

Both the Committee agenda and the report describe the matter to be dealt with in camera as:

“General Accounts-Write-Offs 2009 Settlement to resolve Litigation Matter including matters before Administrative Tribunal Affecting the City.”

This wording was slightly expanded by the addition of “solicitor-client privilege” when the motion was made by the Committee to go in camera. With this addition, the motion read:

That the meeting of the Transit Committee move In Camera pursuant to Section 13 (1) (e) and (f) of the Procedure By-law being Litigation or potential litigation affecting the City and the receiving of advice that is subject to solicitor-client privilege with respect to: General Accounts-Write-Offs 2009.

Neither the Municipal Act nor the Procedure By-law prescribes the wording which must be used in the report or the agenda to describe the subject matter being dealt with. The wording of these two documents can accordingly not be found in violation of any legislated provision. It is noted in passing, however, that the wording that was used in both the report and the agenda to describe the subject matter of the report indicated that there had been a settlement to resolve one litigation matter. That matter was not identified, nor was there any indication that the report also dealt with forty-nine (49) other miscellaneous accounts that had been written off by the Deputy City Treasurer An observer reading the Agenda would certainly not know that a major part of the item being dealt with in camera was ITCL’s bankruptcy and that there were forty-nine (49) more of less routine other accounts which would be brought to the Committee’s attention. The wording of the reporting out date (“30 days after Final Settlement is Reached”) might also be criticized as vague and uncertain in the absence of a settlement date in the report.

The wording of the motion to go into closed session is, unlike the wording of the subject matter in the report or on the Agenda, governed by legislation. Subsection 13 (3) of the Procedure By-law prescribes what must be stated in the motion in the following terms:

A Motion to close a meeting or part of a meeting to the public shall state: (a) the fact of the holding of the closed meeting; and b) the general nature of the matter to be considered at the closed meeting by reference to the specific issue to be considered at the closed meeting.

In Farber v. Kingston (City), a case decided under the wording in the Municipal Act, the municipality resolved to move in camera to discuss “legal matters” without being more specific. In Court, solicitors for the City argued that the Municipal Act did not require more specifics. The Court disagreed, indicating that:

In the circumstances of this case, I do not think that the description “legal matters” is sufficient. In my view, the clear legislative purpose informing s. 239 is to maximize the transparency of municipal governance so far as that as possible in the circumstances. Reading subsections (2) and (4)(b) together in the context of the desirability of open municipal government, I think that the resolution to go into closed session should provide a general description of the issue to be discussed in a way that maximizes the information available to the public while not undermining the reason for excluding the public… At the very least, “legal matters” is inadequate to state the general nature of the matter to be considered at the closed meetings.

The City has now made reference to the specific issue to be considered an express requirement of its Procedure By-law by the addition of the underlined words in subsection 13(3).

When one considers the relative importance of the forty-nine (49) write-offs versus the relatively insignificant loss suffered as a result of the bankruptcy of ITCL, it would seem only appropriate that reference would be made in the motion to both the bankruptcy and the other forty-nine (49) accounts written-off. This could have been done by a wording such as the following:

“Amounts written off as a result of the bankruptcy of Infoplace Ticket Centre Ltd., and 49 lesser accounts. In Camera pursuant to section 13 (1) (e) and (f) of the Procedure By-law as being Litigation or potential litigation affecting the City and the receiving of advice that is subject to solicitor-client privilege with respect to: General Accounts-Write-Offs 2009”
  1. The supporting documentation before the Committee

Subsection 84 (3) of The Procedure By-Law provides that:

Except as otherwise decided by a two-thirds vote of the members of Committee present and voting, the Committee shall not consider any report, information previously distributed, memorandum, or any matter that has not been distributed to the members with the Agenda.

The report indicates that “Specific details relating to general accounts receivable deemed uncollectible in 2009 are on file with the Deputy City Treasurer, Revenue.” These details, consisting of a list of the names, addresses and amounts of each of the forty-nine (49) accounts written off were not distributed to members of the Committee either before or with the Agenda.

On enquiring as to the reason for this departure from the procedure mandated by the Procedure By-law the Meetings Investigator was advised that the procedure was changed following a recent breach of the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) which occurred when a similar list was inadvertently made public. To avoid any reoccurrence of this mishap a procedure was put in place whereby attachments to confidential reports were to be printed on the standard pink coloured paper, marked “confidential” and filed with the City Clerk and Solicitor in a discrete directory.

Neither the procedure mandated by the Procedure By-law nor the procedure developed to redress accidental breaches of confidentiality were followed in this case. Although there is no indication that transparency would have been improved if either procedure had been followed, it is recommended that consideration be given to amending either the procedure or the Procedure By-law so as to avoid future conflicts between the two. It is also recommended that when the question of the handling of confidential supporting documents is reviewed, consideration be given to the means of indicating that some supporting documents may require longer periods of confidentiality than the report they support.

3. The Subject matter of the Report

Section 239 of the Municipal Act sets out the subjects which may be considered in camera.

Section 239 reads in part as follows:

Meetings open to public

239.  (1)  Except as provided in this section, all meetings shall be open to the public. 2001, c. 25, s. 239 (1).

Exceptions

(2)  A meeting or part of a meeting may be closed to the public if the subject matter being considered is,

    1. the security of the property of the municipality or local board;
    2. personal matters about an identifiable individual, including municipal or local board employees;
    3. a proposed or pending acquisition or disposition of land by the municipality or local board;
    4. labour relations or employee negotiations;
    5. Litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board;
    6. advice that is subject to solicitor-client privilege, including communications necessary for that purpose;
    7. a matter in respect of which a council, board, committee or other body may hold a closed meeting under another Act. 2001, c. 25, s. 239 (2)

As noted above, the Committee relied on the exemption in clauses (e) and (f) of the Act as its authority for resolving in camera for a consideration of this matter.

The law gives documents arising during litigation or the giving of solicitor-client advice a special status which protects them from disclosure in the litigation process. This status has been discussed and confirmed in a number of recent court cases as well as reports by Meeting Investigators carrying out their duties under S.239.2 of the Municipal Act.

Although the litigation and solicitor-client privileges have certain features in common, they are not the same. They have different purposes and should not be confused. The litigation privilege is somewhat more restrictive of the two. Its aim is to protect the litigation process by ensuring that parties are free to prepare, gather and discuss all matters relating to an issue that will be placed before a court without fear that their efforts in preparation for the litigation will be brought before the court and influence the outcome. For the privilege to arise the dominant purpose for preparing the document must be some pending or realistically contemplated litigation.

The facts of this case are that all legal issues between ITCL and the City or ITCL’s creditors and the City were resolved by an Order of a judge of the Superior Court of Justice on September 3, 2009 and confirmed by Order dated April 6, 2010. Accordingly, at the time of the Transit Committee meeting no litigation existed or was anticipated, and no litigation privilege could arise to justify the discussion of this matter in camera.

The situation is otherwise when it comes to the privilege of solicitor-client communications. This privilege covers all communications between a client and his, hers or its legal advisor in the course of providing legal advice on any subject whether or not litigation exists or is even contemplated. All that is required is that the communication (1) be between a client and his solicitor acting in a professional capacity, (2) be made in relation to the seeking or receiving of legal advice, and (3) be intended to be confidential.

A review of the Minutes of the In Camera meeting satisfies me that the seeking and giving of legal advice by the City’s legal advisors was not only contemplated but actually took place at this meeting. I am also satisfied that the City anticipated that this advice would be given in confidence and that the City did not consent to the waiver of its right to expect confidentiality of its communication prior to the date set for the release of the report. For these reasons I find that the subject matter considered properly fell within the exception to the open meeting requirements found in paragraph 239 (2) (f) of the Municipal Act.

Conclusion

In summary I find that this matter falls within the list of subjects that may, in Council’s discretion, be discussed in closed session and that the procedure followed complied with the requirements of the Municipal Act and Procedure By-law with the following exceptions:

  1. The description of the matter to be discussed in camera might properly have been expanded to include a reference to the ITCL bankruptcy
  2. The procedure relating to supporting documents in the Procedure By-law should have been followed or the bylaw amended to ensure that documents referred to in a report are either in the hands of Councillors or the City Clerk and Solicitor.

I also find that it would be helpful if the reporting out date for any in camera report were to be set out in a manner that would allow one reading the report to know with certainty whether the time had arrived for the report to be released to the public.

Report to be made public

This report is provided to Council pursuant to the provisions of subsection 239.2 (10) and is, by subsection 239.2 (11) required to be made available to the public.

Douglas R. Wallace
Meeting Investigator
July 2, 2010

Report to the Council of the City of Ottawa Regarding In Camera Corporate Services and Economic Development Committee Meeting of August 31, 2009 and the Council Meeting of September 9, 2009

The authorization of a payment to a senior officer

“The democratic legitimacy of municipal decisions does not spring solely from periodic elections, but also from a decision-making process that is transparent, accessible to the public, and mandated by law. When a municipal government improperly acts with secrecy, this undermines the democratic legitimacy of its decision, and such decisions, even when intra vires, are less worthy of deference”...

The Ontario Municipal Act: A User’s Guide, George Rust-D” Eye and Ophir Bar-Moshe, Thomson*Carswell, 291

Background

The Meetings Investigator received a number of requests to investigate the propriety of a closed meeting of the Corporate Services and Economic Development Committee meeting held on August 31, 2009 and a subsequent meeting of City Council held on September 9, 2009.

The essence of each complaint was that Council approved a substantial ex gratia payment to a senior officer without public debate following a closed meeting of the Corporate Services and Economic Development Committee meeting, contrary to the provisions of the Municipal Act and the Procedure By-law.

The Meeting Investigator reviewed the procedure followed by the City in approving the payment to a senior officer to determine whether there was compliance with the legislative process regarding transparency and accountability in the decision-making process.

The investigation

The following documents were reviewed to determine whether there had been compliance with the provisions of the Municipal Act and Procedure By-law:

  1. Corporate Services and Economic Development Committee Report 46A (In Camera)
  2. Confidential Minutes 25 of the Corporate Services and Economic Development Committee, Monday, August 31, 2009.
  3. Minutes of open Corporate Services and Economic Development Committee Meeting of August 31, 2009.
  4. Council Agenda, September 9, 2009
  5. Minutes of the open Meeting of Council, September 9, 2009

Interviews were also held with the City Manager, the Senior Officer in question, the City Clerk and Solicitor, the Deputy City Clerk and staff of the City Clerk and City Solicitor’s branch.

The Meeting of the Corporate Services and Economic Development Committee

Two questions arise concerning the propriety of this meeting:

  1. Was the subject matter in the report before the Committee the proper subject for an in camera meeting? and
  2. Was it proper for the Committee to amend the recommendation in the report and vote on it as it did?

1. The Subject Matter

The facts

The Agenda for the Corporate Services and Economic Development Committee included a Motion that the Committee “move In Camera pursuant to Section 13 (1) (b), personal matters about an identifiable individual, including staff” to consider a report that was listed on the Agenda as “Transfer of Pension from Federal Government to OMERS resulting in a shortfall of one year pensionable services time.”

The Report consists of a request by a senior officer for reimbursement of a sum which would, after taxes, and upon payment to OMERS, provide the Senior Officer with the same number of years of pensionable service as if he had worked the time he worked for the federal government with the City of Ottawa and had contributed to the City’s pension plan. It sets out figures to show how this amount was calculated and clearly indicates that the basis for the request is a statement made by the Senior Officer at the time of his hiring that he would be transferring his pension to OMERS rather than any agreement by the City to pay any shortfall which might arise at the time of the transfer. It contains an opinion by the City Clerk and Solicitor’s as to liability.

Legislative requirements with regard to the subject matter that may be considered In Camera

Section 239 of the Municipal Act provides that all meetings of a municipal council, local board or a committee of either of them shall be open to the public. It also lists several exceptions to this open meeting rule.

Section 239 reads in part as follows:

Meetings open to public

  • 239.  (1)  Except as provided in this section, all meetings shall be open to the public. 2001, c. 25, s. 239 (1).

Exceptions

(2)  A meeting or part of a meeting may be closed to the public if the subject matter being considered is,

    1. the security of the property of the municipality or local board;
    2. personal matters about an identifiable individual, including municipal or local board employees;
    3. a proposed or pending acquisition or disposition of land by the municipality or local board;
    4. labour relations or employee negotiations;
    5. Litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board;
    6. advice that is subject to solicitor-client privilege, including communications necessary for that purpose;
    7. a matter in respect of which a council, board, committee or other body may hold a closed meeting under another Act. 2001, c. 25, s. 239 (2).

The Committee relied on the exemption in subsection 239 (2) (b) of the Act as its authority for resolving in camera for a consideration of this matter.

Analysis

A discussion of an employee’s financial situation can sometimes properly take place in camera under this exception to the open meeting requirements of the Act. Indeed, it will often be most appropriate to hold such a discussion in camera. The decision to hold the discussion in camera, should however not be automatic. Council has a discretion, and must exercise its discretion thoughtfully.

The Municipal Act provides no guidance as to what factors a municipal council or board should take into account in the exercise of its discretion. Some guidance however, may be found by looking at the treatment of personal information when it comes into conflict with the public interest under the provisions of other Ontario statutes.

The Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) does not purport to regulate what matters a municipal council or committee of council may discuss in public. Nevertheless, some guidance may be found in the manner that it deals with the disclosure of personal information in response to requests under that Act.

Subsection 14 (3) of the Act indicates that the disclosure of certain personal information will be considered an unjustified invasion of personal privacy which the head of the institution shall not release to the public.

Presumed invasion of privacy

14. (3)  A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information,

    1. relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation;
    2. was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation;
    3. relates to eligibility for social service or welfare benefits or to the determination of benefit levels;
    4. relates to employment or educational history;
    5. was obtained on a tax return or gathered for the purpose of collecting a tax;
    6. describes an individual’s finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness;
    7. consists of personal recommendations or evaluations, character references or personnel evaluations; or
    8. indicates the individual’s racial or ethnic origin, sexual orientation or religious or political beliefs or associations. R.S.O. 1990, c. M.56, s. 14 (3).

Although the report before the Corporate Services and Economic Development Committee would likely be included within the definition of an “unjustified invasion of personal information” thus preventing the release of the report in response to an application under that Act, there is nothing in the Act which limits, in any way, the matters which may be considered at an open meeting of Council or a Committee of Council. Further, there is nothing that would have prevented the Committee from declining to consider the report unless the author provided his written consent to its discussion in public or redacted the report in such a way as to remove the most sensitive financial information,. It is also important to note that this Act gives recognition to the inherent value of submitting municipal deliberations to public scrutiny. Subsection 14 (2) provides that

“A head, in determining whether a disclosure of personal information constitutes an unjustified invasion of personal privacy, shall consider all the relevant circumstances, including whether the disclosure is desirable for the purpose of subjecting the activities of the institution to public scrutiny”.

In a case which came before the Assistant Information and Privacy Commissioner under this section of the MFIPPA in 2002 the Assistant Information and Privacy Commissioner heard a journalist’s request to gain access to an electronic copy of campaign contribution records from the 1997 municipal election in Toronto. The journalist’s request had been refused by the City on the basis that the information at issue was already publicly available in paper format. The Assistant Commissioner did not accept this ground for refusing access, but upheld the City’s refusal to release the information on the grounds that disclosure would constitute an unjustifiable invasion of contributors’ personal information.

On appeal, the Superior Court of Justice (Divisional Court) held that the dissemination of records in electronic format was not an unjustified invasion of personal privacy on the grounds that the incremental disclosure of personal information which would result would be reasonably small and, more importantly for our purposes, “would achieve the important objective of enhancing the transparency of the political process with only a minimal further intrusion upon the personal privacy of contributors.”

Other Ontario statutes express a similar preference for upholding the public right to transparency and accountability over individual rights to personal privacy.

Section 9 of the Statutory Powers Procedure Act for example, like S.239 of the Municipal Act, contains a general requirement that hearings be held in the open, subject only to certain limited exceptions. One of the exceptions is stated to be when the Tribunal is of the opinion that

(b) Intimate financial or personal matters or other matters may be discussed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearing be open to the public.

The Police Services Act contains the identical wording with respect to the requirement for open hearings under that Act, as did the Public Libraries Act until its recent amendment adopting the identical language to S.239 of the Municipal Act.

In summary, S.239 of the Municipal Act is just one of several pieces of provincial legislation indicating a presumption (or statutory preference) in favour of openness in the absence of any compelling reason to the contrary. It may safely be presumed that in enacting S.239, the legislature intended municipal councils or other municipal bodies to follow the same type of balancing process with respect to the exercise of its discretion under this Act as it mandated in the other pieces of legislation. In short the choice to go in camera was not to be automatic, but only to be made when the desirability of avoiding the public disclosure of personal matters is found to outweigh the desirability of maintaining the principle of transparency and accountability in the political process.

Conclusion

It is not the role of the Meetings Investigator to weigh the factors which Council or a Committee of Council should take into consideration in making its decision whether an individual’s interest in personal privacy should prevail over the public interest in submitting the actions of their elected representatives to public scrutiny. The legislature has clearly placed this responsibility on the shoulders of the elected representatives. It is my duty, however, to advise elected representatives and the public alike when it appears that this responsibility may not have been properly exercised.

Circumstances which members of the Corporate Services and Economic Development Committee might properly have taken into account in the exercise of its discretion include the following:

    1. the report before it had a reporting out date (“After Council consideration”) indicating that the individual had no expectation that the recommendation would be kept confidential following Council Approval.
    2. the precise amount of the payment would be made public at a later date under the Public Sector Salary Disclosure Act, S.O. 1996, c.1
    3. the decision involved the discretionary spending of a substantial sum of public money, and
    4. the payment was to a senior officer or employee of the municipality

If the Committee had taken these circumstances into account, as well as the nature of the personal information contained in the report, it is difficult to conclude that the Committee properly exercised its discretion in deciding to consider this matter behind closed doors.

Recommendations

It may well be that in deciding to discuss this matter in camera, the Committee was genuinely concerned with protecting the privacy of the individual. Unfortunately, in the absence of any reasons for its decision on the record, the public is left with a legitimate concern that the real reason may have been a desire to avoid being held accountable for its actions. To disabuse the public of this view it is recommended:

  1. That Corporate Services and Economic Development Committee Report 46A, together with the vote taken in camera, be released to the public, subject only to such redaction, if any, as the City Clerk and Solicitor may consider necessary to comply with the provisions of the Municipal Freedom of Information and Protection of Privacy Act, and
  2. That staff be directed not to place a report on an in camera agenda under the exception relating to personal matters about an identifiable individual, if that report can easily be redacted to minimize the harm to that individual and permit discussion in open session.

2. The vote in Committee

The facts

The recommendation in the report that came before the Corporate Services and Economic Development Committee read:

That the Corporate Services and Economic Committee consider [a request by a senior officer of the Municipality for the payment of a stated sum of money] to cover the shortfall of the pension transfer from the Federal government to Ontario Municipal Employees Retirement System (OMERS).

The Committee revised the recommendation to read:

That Council direct staff to authorize the payment [of a stated sum of money to a senior officer of the Municipality] to cover the shortfall of the pension transfer from the Federal government to the Ontario Municipal Employees Retirement System (OMERS), provided the costs are taken from the [relevant] budget.

Legislative requirements regarding voting In Camera

Subsection 239 (5) of the Act and section 13 (5) of the Procedure By-law prohibit the taking of votes during in camera meetings. Two exceptions are set out in subsection 239 (6).

Subsections 239(5) and 239 (6) of the Municipal Act provide as follows:

Open meeting

(5)  Subject to subsection (6), a meeting shall not be closed to the public during the taking of a vote. 2001, c. 25, s. 239 (5).

Exception

(6)  Despite section 244, a meeting may be closed to the public during a vote if,

(a) subsection (2) or (3) permits or requires the meeting to be closed to the public; and

(b) the vote is for a procedural matter or for giving directions or instructions to officers, employees or agents of the municipality, local board or committee of either of them or persons retained by or under a contract with the municipality or local board. 2001, c. 25, s. 239 (6).

The first change in the wording of the recommendation was made by the Committee in an obvious attempt to bring the motion within the exemption set out in subsection 239 (6) (b).

Analysis

There were three ways that the Committee could have complied with the legislative prohibition on voting in camera. It could have

    1. redacted the report to remove exact figures if it felt this was necessary, to allow a discussion of the report and vote to be taken in public;
    2. preserved the report’s confidentiality until a decision was made by council by voting to refer the recommendation in the report to council; or
    3. reworded the recommendation as a direction to staff so as to allow a vote be taken in camera pursuant to subsection 239 (5).

Its choice of the third option was unfortunate.

Conclusion

Although arguably complying with the letter of the legislation, this choice clearly violates its spirit. There is little doubt that the framers of section 239 of the Municipal Act intended to limit the use of the two exceptions set out in that section to the type of actions which would facilitate the carrying out of past Council decisions or assist in the preparation of material for Council’s use in making future decisions. It could never have been their intention to allow the prohibition of voting in camera to be circumvented by simply cloaking a substantive motion in the clothing of a direction to staff. Whether the money required to satisfy the Senior Officer’s request is new money or is taken from an account under the relevant budget, it is still the spending of public money for a purpose for which it was not originally approved. And whether the motion is to pay the money or to direct staff to authorize the payment of money, it is still a substantive motion not, in the Meetings Investigator’s opinion, a motion within the spirit or intent of clause 239 (6) (b).

Recommendations

3. That the intent of subsection 239 (5) be honoured by restricting its use to the giving of directions required to carry out decisions already taken by Council or to obtain information required for future decisions.

The Proceedings at Council

Facts

At the opening of its meeting of September 9, 2009, City Council carried, on consent, the staff direction passed by the Corporate Services and Economic Development Committee. It did so without making public the report containing the Direction or even reading aloud the Direction which it was approving. The recorded Minutes of this meeting of Council indicate that “the confidential staff direction set out in Item 1 of Corporate Services and Economic Development Committee Report 46A (in camera) was carried by Council on consent”. Strangely, the only record of what was in the staff direction that Council approved at this open meeting is found in the Minutes of the In Camera Meeting which was convened on the same day to deal with a different matter altogether.

The heading of Item 1, Report 46A as it appeared on the Committee Agenda indicated that the report had a reporting out date of “following council consideration”. For the Council meeting of September 9, 2009, the reporting out date shown on the report had been changed to “Not to be reported out”.

Legislative requirements

Subsection 239(7) of the Municipal Act sets out an important requirement with respect to the recording of all decisions at either closed or open meetings of Council:

Record of meeting

(7)  A municipality or local board or a committee of either of them shall record without note or comment all resolutions, decisions and other proceedings at a meeting of the body, whether it is closed to the public or not. 2006, c. 32, Sched. A, s. 

Section 13 of the Procedure By-Law as amended sets out a requirement regarding reporting out dates.

(6) All reports intended to be considered in a closed meeting shall include a reporting out date being a date when the report can be released to members of the public upon request.

Analysis

Recording in Council Minutes, that Council approved a direction which was set out in another report may arguably comply with the letter of the law. It, however, certainly sheds no light on what it was that Council was actually approving, and in this respect it falls far short of complying with the spirit of the law. How much better it would have been to record that “Council approved the staff direction set out in in camera agenda 46A that “staff authorize the payment [of a stated sum of money to a senior officer of the Municipality] to cover the shortfall of the pension transfer from the Federal government to the Ontario Municipal Employees Retirement System (OMERS)”

The deletion of the reporting out date that was shown in the report that went to Committee was apparently a staff decision in keeping with past practice involving directions to staff. This practice appears to fly squarely in the face of subsection 13 (6) of the Procedure By-law.

Conclusion

The result of Council’s action was that neither the Report nor the effect of City Council’s decision in approving the Direction contained in the Report, were ever made public.

Recommendation

4. That subsection 13 (6) of the Procedure By-law be amended to provide that, every in camera report indicate under the Disposition section either the date that the report will be made public or , if the report is not to be made public, the opinion of the City Clerk and Solicitor that there are legal impediments to the release of the report.

5. That the wording of all Committee recommendations considered at an open session of Council be made part of the public record for that meeting of Council.

Public report

The Meetings Investigator received the full cooperation of the City Manager, the City Clerk and Solicitor, the Senior Officer in question and the staff of all departments.

City Council is required by the Municipal Act to ensure that this report is made available to the public.

Douglas R. Wallace
Meetings Investigator
April 30, 2010

Report to the Council of the City of Ottawa Regarding the Investigation of a Closed Meeting of Ottawa City Council held on June 24, 2009

The request

A request was received to investigate that part of the closed meeting, which dealt with the acquisition of a site for the proposed new central library.

The Request noted the following concerns:

City Council considered item 3, Corporate Services and Economic Development Agenda 44 regarding the new Central Library site. Twenty-six million dollars has been set aside for the purchase of the site. The site has been made public. During the course of the discussion a Council member asked why the item was not in camera. Staff responded that it was not necessary, as any negotiations with the owners would be based on market value; that the market would dictate the cost of the land. There are no other possible reasons to justify an in camera session. The location of the land is public, the amount set aside for its purchase is public and as staff indicate, the properties will be sold at fair market value.

The issue

A review of the Minutes of both the Open and Closed Sessions of Council reveals that the procedural requirements set out in the Municipal Act and the Procedure By-law were fully complied with. A Motion to Resolve In Camera was duly moved, seconded and carried; the motion adequately described the particular issue to be considered; the time of going in camera and resuming in open session was noted; and finally, a report of what took place in camera was made to Council on the resumption of the open session. The only issue is whether the subject matter of the report falls within the list of matters that may be considered in closed session and, if so, whether it was appropriate for Council to exercise its authority to consider this matter in closed session in this case.

The rules

The list of matters that may be considered in camera is by now well known to members of Council. It is found in Section 239 of the Municipal Act, 2001 and section 13 of the Procedure By-law. Section 13 of the Procedure By-law is as follows:

Council may, by resolution, close a meeting or part of a meeting to members of the public if the subject matter to be considered is,

    1. the security of the property of the City;
    2. personal matters about an identifiable individual, including staff;
    3. a proposed or pending acquisition or disposition of land for the purposes of the City;
    4. labour relations or employee negotiations;
    5. litigation or potential litigation, affecting the City, including matters before administrative tribunals;
    6. the receiving of advice that is subject to solicitor-client privilege, including communications necessary for that purpose; or
    7. a matter in respect of which the Council is authorized by statute to hold a closed meeting;

Compliance with the rules

Council, in moving to resolve in camera, indicated that it was relying on the exemptions set out in clauses (a), (c) and (f) above. The Motion was as follows:

Be It Resolved That Council resolve In Camera pursuant to Procedure By-law 2006-462, Subsections 13.1 (1) (a) the security of the Property of the City; (c) a proposed or pending acquisition or disposition of land for the purpose of the City; and (f) the receiving of advice that is subject to solicitor-client privilege, including communications necessary for that purpose, with respect to Corporate Services and Economic Development Committee Report 44, Item 3—New Central Library Site and specifically, confidential issues surrounding the City's negotiating position for the proposed acquisition.

It is abundantly clear from a reading of the Report being considered that the matter falls squarely within the exemption respecting a “pending acquisition” of land for the purposes of the City, the second exemption relied on by Council. Indeed, it would be difficult to imagine a clearer example of such an exemption. Further, the In Camera Minutes of the Meeting which have been reviewed, as well as interviews with both Councillors and staff indicate that the City Clerk and Solicitor was present at the meeting and that “Staff responded to a number of questions from Members of Council, which centered primarily on strategic and legal issues related to the pending negotiations for the land, expropriation and claims for injurious affection”. Council's consideration of this matter in camera would accordingly appear to fall equally well under the exemption relating to “the receiving of advice that is subject to solicitor-client privilege, including communications necessary for that purpose”.

Was it appropriate for Council to rely on these exemptions?

Notwithstanding the apparent clear right of Council to rely on the exemptions noted above to conduct its deliberations in closed session, the Requestor notes correctly that the exemptions allow the matters listed to be considered in camera; they do not require that the matters be considered. There is a discretion with respect to most of the exemptions and in this case, Council wrongly exercised its discretion. The basis for this allegation is the stated opinion that all the facts that would normally have justified an in camera

discussion were already known. What harm the Requestor wonders, could come from further discussion in the public?

The Meetings Investigator does not doubt that the divulging of a report's contents in public could in some cases obviate the need, or indeed the appropriateness of conducting an in camera consideration of the matter. He does not, however, feel that this is the case here.

This is so for two reasons. First, a close reading of the Report and interviews with staff reveal that the argument is based on a faulty, or incomplete, understanding of the facts. Contrary to the Requestor's understanding, there were many facts essential for meaningful negotiations that were not contained in the public report. The most important of these was a description of what had already been offered or would be offered to individual property owners within the area being designated. Other matters included the timing of various stages of negotiations, when resort might be had to expropriation, and the value of potential claims for injurious affection.

The second reason the Meetings Investigator should be hesitant in second-guessing Council's decision to exercise its discretion in favour of resolving in camera is that Council's decision is based, as of necessity on an anticipation of the type of discussion which is likely to occur. Until Council resolves in camera no one, including staff or the Chair of the meeting, knows for sure what questions may be asked, or advice given. Whether questions were or were not asked during the in camera session that went beyond the information contained in the public report it was clearly reasonable to anticipate that such questions might be asked.

Conclusions

I am satisfied that Council had the clear authority under the Rules to consider this Report in camera and appropriately exercised its discretion to do so.

Public report

I received the full co-operation and support in the conduct of this investigation from members of Council and staff and thank them for providing me with full access to all requested documents and their time.

This report is forwarded to Council of the City of Ottawa and is required to be made available to the public.

Douglas R. Wallace
Meetings Investigator

November 13, 2009

Report to the Council of the City of Ottawa regarding the investigation of the Closed Meetings of Ottawa City Council held on March 11 and March 25, 2009.

The Requests

On April 9, 2009 two Request Forms were received:

Request 10-09 contains a complaint that Council resolved to go in camera during its regularly scheduled meeting on March 11, 2009 to discuss the application of work-rest rules for municipal transit operators when there is no authority to consider this subject in a closed session.

Request 11-09 contains two complaints relating to the Special meeting of Council on March 25, 2009. The first is that the motion to resolve in camera does not indicate the specific topic to be considered. The second is that there is no report to an open session of Council that Council had met in closed session or the matters, which had been considered.

The Rules

The same legislative requirements apply to the issues raised in both requests. They are the rules governing

  1. The matters that may be discussed in camera
  2. The Motion to go in camera and
  3. The recording of in camera proceedings.

1. The matters that may be discussed in camera

Section 239 of the Municipal Act, 2001 has been incorporated into the Procedure By-law and requires that all meetings of Council be open to the public with the following exceptions:

Exceptions

(2) A meeting or part of a meeting may be closed to the public if the subject matter being considered is,

(a) the security of the property of the municipality or local board;
(b) personal matters about an identifiable individual, including municipal or local board employees;
(c) a proposed or pending acquisition or disposition of land by the municipality or local board;
(d) labour relations or employee negotiations;
(e) litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board;
(f) advice that is subject to solicitor-client privilege, including communications necessary for that purpose;
(g) a matter in respect of which a council, board, committee or other body may hold a closed meeting under another Act. 2001, c. 25, s. 239 (2).

2. The Motion to go in camera

The Rule governing the procedure to be followed in resolving in camera is found in subsection 13 (3) of the Procedure By-law. This subsection adds to the mandatory provisions of the provincial legislation by requiring that the motion that must be passed before going in camera make reference to the specific issue to be considered at the closed meeting. Subsection 13 (3) reads as follows:

13 (3) A motion to close a meeting or part of a meeting to the public shall state:
(a) the fact of the holding of the closed meeting; and
(b) the general nature of the matter to be considered at the closed meeting by reference to the specific issue to be considered at the closed meeting

3. The recording of in camera proceedings

The provision of the Act that dictates the procedure, which must be followed with respect to the recording of the proceedings in closed session is subsection 239 (7) of the Municipal Act. This subsection reads:

(7) A municipality or local board or a committee of either of them shall record without note or comment all resolutions, decisions and other proceedings at a meeting of the body, whether it is closed to the public or not. 2006, c. 32, Sched. A, s. 103 (3).

Compliance with the rules

1. The rules regarding the subject matter which may be discussed in camera

a) The meeting of March 11

The Minutes of the closed session of the March 11 meeting reveal that Council discussed three subjects at its in camera session. There is no complaint concerning two of the matters; those relating to Corporate Realignment and a briefing provided by the City Clerk and Solicitor respecting the Light Rail Transit litigation. The third matter discussed and the subject of this request for an investigation, related to the application of the work-rest rules at OC-Transpo.

Correspondence with the Deputy City Clerk and the Minutes of this meeting indicate that Council was provided with information at this meeting from the City Clerk and Solicitor and the General Manager, OC Transpo, concerning a meeting that had been held the previous evening between the City and the union representing transit workers (ATU) regarding the issue of work scheduling. Council was informed that the employer had advised ATU that it was prohibiting transit employees from booking double shifts, the reasons for this action, and the possible legal ramifications.

As the matter of shift scheduling had been a major issue during lengthy labour negotiations between the City and the ATU and continues to be an issue in the submission of this dispute to binding arbitration, I have no hesitation in finding that this discussion falls squarely within clause (d) in subsection 239 (2) of the Municipal Act noted above relating to “labour relations or employee negotiations”. I find further, that the discussion of what had transpired at the meeting between the OC Transpo and the ATU and any legal ramifications arising out of the discussions at that meeting are properly the subject of a claim for solicitor-client privilege under clause (f) of subsection 239 (2).

In summary, it was quite proper for Council to discuss the application of the work-rest rules at OC Transpo during this in camera meeting of Council.

b) The meeting of March 25

The Minutes of the in camera meeting held on March 25 show that the only subject discussed at the in camera meeting on this date was the matter for which the special meeting had been called, namely, the City Manager’s report on Corporate Realignment which had been adjourned from the March 11 meeting. The City Manager’s report entitled, Achieving Service Excellence Today, Building a Sustainable, Vibrant City for Tomorrow: Aligning the Organization for Change, Phase 3, consists of a summary of the status of the first two phases of the realignment process approved in October and November, 2008 and an outline of the steps being taken to implement the third phase. Approximately 50 per cent of the written material used in the presentation consists of a section entitled New Structure. This section describes the key changes in the role of each City Department and includes organization charts showing both positions and, in many cases, the names of employees in key positions within each reorganized department. In many cases the identified individuals are shown as being in their positions in an Acting or Interim basis. In other cases it is indicated that a recruitment process is ongoing. This presentation was repeated in open session in its entirety except for the New Structure section.

On reading the Motion to resolve in camera (set out below), as well as the slides prepared for the City Manager’s presentation, it is not immediately evident what justification there could be for considering the matter of the “Corporate Realignment” in camera. The mystery is deepened when one notes on the last page of both the in camera presentation and the open session presentation that the organization charts deleted from the in camera session were to be posted on the City’s website two days after the date of his presentations to Council. If the organization charts describing all senior positions and naming the employees in these positions could be made public on March 27 one has to wonder why it was not possible to discuss these charts in public at the open session part of the Council meeting of March 25. If that information could have been revealed in public why would a closed session be required at all?

The answer is found in part in the Minutes of the closed session, which state that “Council was briefed on the new structure and specific staff changes, including changes to the employment conditions for identifiable individuals”. When one combines this statement with the statement in the Motion to resolve in camera which indicates that one of the reasons for going in camera was to receive legal advice from the City Clerk and Solicitor, it is not difficult to imagine that the City Manager wanted to delay making the names of the employees affected by the realignment public until such time as members of Council had had an opportunity to consider any advice the City Solicitor might give them respecting potential civil liability arising out of unilateral changes in their working conditions. The City Solicitor’s comments regarding potential liability could quite conceivably influence some members of Council to direct the City Manager to delay making the appointments or dismissals public until agreement had been reached with these employees concerning their continued employment in a changed role. We do not know the nature of the advice Council received or what effect this advice had on any directions it may have given the City Manager. But we do know that legal liability could be a legitimate concern in making unilateral changes in employment conditions and that it would be reasonable to expect that members of Council would wish to consider such potential liability before giving its instructions to the City Manager and before the placement of individuals became public.

Considering the nature of the discussion that the City Manager might reasonably have anticipated, I find that the subject matter of the meeting can properly be classified as falling within the exemption from the mandatory provisions for discussion at open meetings found in clause 239 (2) d of the Municipal Act regarding “labour relations or employee negotiations”. The presentation in camera and any discussion of the presentation could equally, well be justified as a communication necessary for the giving of legal advice by the City Clerk and Solicitor.

2. The Motion to go in camera

Council passed motions to resolve in camera during the open sessions preceding the in camera sessions on both dates under investigation. The issue is whether these motions provided the level of specificity required by the City’s own Procedure By-law.

a) The meeting of March 11

The motion to resolve in camera during the March 11 meeting of Council was worded as follows:

Motion no. 62/3

BE IT RESOLVED that the Rules of Procedure be waived to permit the receipt of a briefing from the City Clerk and Solicitor with respect to:

a) application of the Work-Rest rules; and
b) matters related to Phase 3 of the Corporate Re-alignment.

BE IT FURTHER RESOLVED that Council resolve In Camera pursuant to Subsection 13. (1) (d) labour relations or employee negotiations and (f) the receiving of advice that is subject to solicitor-client privilege, including communications necessary for that purpose; or of Procedure By-law 2006-462 with respect to the matters noted above.

Dealing only with the application of the Work-Rest rules, which is the subject of this Request for investigation, one can see, regardless of the awkwardness of the language, that the subject to be discussed is the work-rest rules and that the particular issue is the application of these rules. This is precisely what was discussed — how and when the proposed new rules were to be put into effect. While the motion does not expressly say that it is the work-rest rules applying to OC Transit workers that are to be discussed, I have no doubt that this was well understood given the fact that work scheduling had been such a high profile issue during the recent lengthy labour disruption involving OC Transit workers.

The motion is also relatively clear that the exemptions from the mandatory open meeting provisions of the Act which were being relied on to justify the discussion to take place in camera were the exemptions relating to labour relations and employee negotiations and solicitor-client communications.

For these reasons, I find the motion met the requirements of the Procedure By-law in this case.

b) The meeting of March 25

The motion to go in camera on March 25 reads as follows:

Motion no. 63/1

BE IT RESOLVED THAT Council resolve In Camera pursuant to the Procedure By-law, 2006-462, Subsections 13. (1) (b) personal matters about an identifiable individual, including staff; (d) labour relations or employee negotiations; and (f) the receiving of advice that is subject to solicitor-client privilege, including communications necessary for that purpose, with respect to the Corporate Realignment.

Again, the language is perhaps awkward, but all necessary elements are there. If one reads to the end of the motion the subject matter of the discussion (Corporate Realignment), is revealed and although no particular issue within that subject is identified, it is difficult to see how any one issue could have been identified in advance, Council was not asked to make a decision on one particular issue but to consider the plan being put forward as a whole.

Given the fact that the plan was put forward in its entirety, I believe that the motion met the spirit of the Procedure By-law as closely as possible.

3. The recording of in camera proceedings

Were the “resolutions, decisions and other proceedings” recorded without note or comment as required by subsection 239 (7) of the Municipal Act quoted above?

a) The meeting of March 11

I have carefully read the Minutes of this In Camera meeting and find that they contain a record of those attending, the subject matter on which Council received a briefing and the fact that there was a discussion following the briefing. They also indicate that the only action taken was the giving of direction to staff. Both the in camera Minutes and the Minutes of the open meeting record the exact time when the in camera portion of the meeting began and ended. In my opinion the Minutes fully meet the requirements of subsection 239(7) of the Municipal Act.

b) The meeting of March 25

The same can be said of the in camera meeting of March 25. Both the in camera Minutes and the Minutes of the open session accurately record the starting and ending times of the meetings and the in camera Minutes not only record that a PowerPoint presentation was given on corporate realignment, but notes that a copy of the presentation is on file with the City Clerk. The directions to staff are recorded as well as a motion to staff which did not carry and a motion to resume in Open Session. Again, there can be no doubt that the Minutes fully comply with the letter and intent of the relevant legislation.

Rising and reporting

The Motions concluding both in camera Meetings follow the same format:

That Council move out of camera and resume in Open Session

On resuming in Open Session, Council immediately turned its attention to new business with no reference to what had transpired during the closed door session.

Although the relatively recent amendments to the Municipal Act bringing the stricter provisions concerning openness in local government into effect do not legislate a reporting out procedure, Closed Meeting Investigators across the Province including the Ontario Ombudsman, have been unanimous in recommending that the implementation of a procedure whereby the Chair of the Closed Meeting report to the Open Session that a closed meeting was held, the number and description of the matters dealt with at that session, and how the matters had been disposed of.

I recommended such a procedure in my first report to Council on February 25, 2009 in the following words:

It is recommended that Council conclude each in camera meeting with a motion to rise and report, that the Chair report in open session the fact that Council had met in camera, the matters which were considered, and that no votes were taken other than to give direction to staff or to deal with procedural matters.

It is further recommended that the Chair's report be recorded in the minutes of the public meeting.

The Ontario Ombudsman soon made a similar recommendation in his report to the Twp. of Baldwin on March 23, 2009. His comments in this case were as follows:

Reporting in Public In addition to not issuing minutes that accurately reflected what had occurred at the July14, 2008, closed session, the council did not report back in a public session regarding the in-camera meeting. Council should always follow a practice of reporting publicly, in at least a general way, about matters discussed in closed session, including reference to resolutions, decisions, directions to staff and other proceedings, as appropriate. This would go a long way to instilling public confidence in the transparency of Baldwin’s governance.

Similar recommendations were made by Closed Meeting Investigators in their reports to the Twp. of East Luther Grand Valley, the City of Cambridge and the Twp. of Wainfleet.

Although those advising Council may feel in good faith that a reporting out procedure following the conclusion of an in camera meeting is somewhat redundant given the explicit nature of the Motion Council is required to pass prior to going in closed session, I do not feel this is the case and would again urge Council to adopt the better practice recommended above.

The adoption of such a practice would add a level of transparency and openness to Council proceedings and would, in my opinion have the effect of reducing the number of Requests for investigations.

A report could have been made, for example, to the Open Session of Council on March 11, 2009 indicating that a closed session had been held to consider how the work-rest rules for OC Transit workers were being implemented and the effect of the application of these rules on labour relations. If such a report had been made it is doubtful that Request 10-09 would have been made.

Similarly, a report could have been made to Open Council following the in camera meeting of Council on March 25, 2009 indicating that Council had met in camera to receive a briefing on the new structure and specific staff changes, including changes to the employment conditions for identifiable individuals which would result from the implementation of the City Manager’s report on Corporate Realignment.

Such reports should also indicate the general nature of the actions taken by Council in camera.

Conclusions

For the reasons set out above I find that the City complied with all legislative requirements regulating the conduct of closed meetings with respect to the meetings on March 11 and March 25, 2005.

Recommendation

It is recommended that Council conclude each in camera meeting with a motion to rise and report, that the Chair report in open session the fact that Council had met in camera, the matters which were considered, and that no votes were taken other than to give direction to staff or to deal with procedural matters.

It is further recommended that the Chair's report be recorded in the minutes of the public meeting.

Public report

I received the full co-operation in the conduct of this investigation from City staff and thank them for their assistance.

This report is forwarded to Council of the City of Ottawa and is required to be made public.

Douglas R. Wallace
Closed Meeting Investigator
May 12, 2009

Report to the Council of the City of Ottawa regarding the investigation of the Closed Meeting of Ottawa City Council held on January 28, 2009

The Request

On February 9, 2009 a Request Form was received containing a complaint that City Council called a special meeting on January 28, 2009 to discuss the OC Transpo strike, and moved a motion to go in camera to speak about confidential matters related to the strike. During the in camera session, questions arose about the City Manager hiring, at the Mayor’s suggestion, a consultant to help with communications during the strike. These questions arose as a result of a news story appearing in that morning’s newspaper that alleged that the consultant hired by the City Manager was an important witness in the upcoming trial involving the Mayor.

The Requestor stated that he was unaware of any provision in the Municipal Act which would allow for a discussion of this latter matter in closed session.

The Rules

The investigation focussed on the City’s compliance with three rules relating to the holding of closed meetings. These rules concern:

  1. the subject matter considered;
  2. the resolution to go in camera; and
  3. the record of proceedings.

1. The Subject Matter

Subsection 239 (2) of the Municipal Act lists the matters that may be considered in closed session as exceptions to the general rule that meeting must be held in public. The subsection provides as follows:

Exceptions

(2) A meeting or part of a meeting may be closed to the public if the subject matter being considered is,

    1. the security of the property of the municipality or local board;
    2. personal matters about an identifiable individual, including municipal or local board employees;
    3. a proposed or pending acquisition or disposition of land by the municipality or local board;
    4. labour relations or employee negotiations;
    5. litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board;
    6. advice that is subject to solicitor-client privilege, including communications necessary for that purpose;
    7. a matter in respect of which a council, board, committee or other body may hold a closed meeting under another Act. 2001, c. 25, s. 239 (2).

These provisions have been integrated word for word into section 13 of the City’s Procedure By-law.

2. The Resolution To Go In Camera

Section 239 of the Act also sets out a mandatory rule that must be followed by a municipal council before going into a closed session. Subsection (4) of that section provides that:

(4) Before holding a meeting or part of a meeting that is to be closed to the public, a municipality or local board or committee of either of them shall state by resolution,

    1. the fact of the holding of the closed meeting and the general nature of the matter to be considered at the closed meeting; or
    2. in the case of a meeting under subsection (3.1), the fact of the holding of the closed meeting, the general nature of its subject-matter and that it is to be closed under that subsection. 2001, c. 25, s. 239 (4); 2006, c. 32, Sched. A, s. 103 (2).

The City has also incorporated this requirement into section 13 of its Procedure By-law and has indeed gone somewhat further, by adding the words “by reference to the specific issue to be considered at the closed meeting” to the requirement set out in clause 239(4) (b) above. With this addition the requirement in the Procedure By-law with respect to the giving of notice to close the meeting now reads:

(3) A motion to close a meeting or part of a meeting to the public shall state:

    1. the fact of the holding of the closed meeting; and
    2. the general nature of the matter to be considered at the closed meeting by reference to the specific issue to be considered at the closed meeting. [emphasis added].

3. The Record of Proceedings

The final provision of the Act that is relevant to the question of whether or not the City followed the mandated procedure with respect to the holding of this closed meeting is found in subsection 239(7) of the Act relating to the recording of the proceedings in closed session. This subsection reads:

(7) A municipality or local board or a committee of either of them shall record without note or comment all resolutions, decisions and other proceedings at a meeting of the body, whether it is closed to the public or not. 2006, c. 32, Sched. A, s. 103 (3).

Did City Council comply with the rules in this case?

A. Compliance with the rules regarding the subject matter

Interviews with the City Manager, the City Clerk and Solicitor, the Deputy City Clerk and the councillors most directly concerned, confirm that the question of the City Manager’s hiring of a public relations firm to assist in communications regarding the on-going OC Transpo strike was considered at the in camera meeting of Council as stated in the Request. The intention of raising the matter was to question the City Manager’s judgment in the performance of his duties and the explanation that was given by the City Manager was consistent with the knowledge that his judgment was being questioned.

The first thing to be noted when considering whether this matter properly falls within one of the enumerated exemptions from the requirement that all matter be discussed in open session is that the governing Ontario legislation, unlike the legislation in the vast majority of Canadian and American jurisdictions, contains no specific exclusion for “personnel matters”, “matters relating to the hiring, firing, promotion, demotion, or performance appraisals” of employees or “employee relations”. Rather, the applicable exemptions are described in language which shows that it is only certain employee matters that may be discussed in camera. Thus, for example, the exemption relating to (d) labour relations or employee negotiations” restricts the exemption to those cases where there is to be a discussion of conditions of employment affecting all employees, or at a minimum, all employees in a class. Similarly, the exemption in clause (b) relating to “personal matters about an identifiable individual, including municipal or local board employees”, restricts a discussion of employee related matters to those discussions which would reveal “personal matters about an identifiable individual”.

Although the term “personal matters” has not been defined in this legislation, we may surmise that the term has a similar meaning to the term “personal information” which is used and defined as follows in the Municipal Freedom of Information and Protection of Privacy Act:

“personal information” means recorded information about an identifiable individual, including:

    1. information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual;
    2. information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved;
    3. any identifying number, symbol or other particular assigned to the individual;
    4. the address, telephone number, fingerprints or blood type of the individual;
    5. the personal opinions or views of the individual except if they relate to another individual;
    6. correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence;
    7. the views or opinions of another individual about the individual; and
    8. the individual’s name if it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual.

In my opinion the discussion that occurred in camera on January 28, 2009 concerning the City Manager’s retention of a public relations consultant can fairly be said to consist almost entirely of “the personal opinions or views of the individual except if they relate to another individual” and “the views or opinions of another individual about the individual”.

Conclusion

Applying this definition to the facts of this case I have no hesitation in concluding that City Council had the discretion to discuss this matter in camera.

Although it is my view that Council had the right to consider this matter in camera, two things should be noted when the question of personnel matters arise in the future:

1. It is not all personnel matters that will be found to fall within the exemption provided by subsection 293(2) of the Act; and

2. The fact that a particular personnel matter can safely be considered as falling within the exemptions set out in subsection 293(2), thus allowing it to be discussed in closed session, does not mean that the matter should automatically be scheduled for an in camera meeting. Council has a discretion to discuss the matters set out in subsection 239(2) in public or closed session, and should only vote to go in camera after balancing the public’s right to see its democratically elected representatives in action with the individual’s right to privacy.

B. Compliance with the rules regarding the Motion to resolve in camera

A review of the Minutes of City Council Meeting 58, held on January 28 shows that the following Motions were introduced in the open session and carried prior to Council resolving in camera:

BE IT RESOLVED THAT the Rules of Procedure be waived to permit the receipt of a briefing from the City Clerk and Solicitor with respect to matters related to collective bargaining for OC Transpo; and

BE IT RESOLVED that Council resolve In Camera pursuant to Subsections 13 (1) (b) personal matters about an identifiable individual, including staff; (d) labour relations or employee negotiations; and (f) the receiving of advice that is subject to solicitor-client privilege, including communications necessary for that purpose, of Procedure By-law 2006-462, with respect to matters related to collective bargaining for OCTranspo and other transit strike related matters.

It was explained in interviews with staff that the reference to “personal matters about an identifiable individual” and “labour relations or employee negotiations” was included in the second motion in anticipation of the question of the City Manager’s retention of the consultant being raised. The motion however, does not refer specifically to this issue and cannot be said, in the words of the by-law, to “state the general nature of the matter to be considered at the closed meeting by reference to the specific issue to be considered at the closed meeting. A preferred wording that would have met the requirements of the by-law would have been along the following lines:

BE IT RESOLVED THAT Council move into closed session pursuant to Section 239 (2) (b) of the Municipal Act, being personal matters about an identifiable individual, including municipal or local board employees, to consider the retention by the City Manager of a consultant to advise on communications matters during the OC Transpo strike.

1.Although it is not common for Canadian jurisdictions to provide specific protection to the individual whose performance may be in question, a number of ways of protecting employee’s rights are suggested in the attached survey of American jurisdictions.

Conclusion

The motion to resolve in camera did not comply fully with clause 13(3) (b) of the Procedure By-law.

C. Compliance with the rules regarding the record of Proceedings.

Neither the Minutes of the In Camera or open session of the meeting make any mention of the request made of the City Manager to explain his hiring of a public relations firm, or of his response. Although subsection 239 (7) of the Municipal Act does not define precisely what proceedings must be recorded, or specifically require the recording of each and every question asked, when a matter is considered of sufficient weight to merit mention in the motion to resolve in camera best practices at least would dictate that a record be kept of how the matter was disposed of. This could have been done very simply in this case by the notation that “the City Manager was asked for, and provided an explanation as to why he hired a consultation firm to assist in communications concerning the OC Transpo strike”.

Conclusion

The City failed to comply with subsection 239(7) of the Municipal Act in failing to record one of the proceedings of its closed meeting on January 28, 2009.

Douglas R. Wallace
Meeting Investigator
March 15, 2009

Appendix A

Discussion of Personnel Matters in American Jurisdictions
Jurisdiction Open Mandatory Open Unless Closed Unless Council Option Employee Option Open on Condition Closed on Condition
Missouri             X2
Arkansas       X      
New Jersey     X3   *    
Colorado   X4     *    
Hawaii             X5
Ohio             X6
Delaware     X        
Kentucky       X      
Washington       X7 *    
Florida X            
California       X8      
Texas       X6 *    
New Hampshire       X      
S. Carolina       X9      
Oregon       X      
Maryland       X      
Connecticut       X6 *    
Arizona       X *    
N. Carolina       X      
W. Virginia         *   X10
Georgia             X11
Indiana       X      
Vermont       X      
New York       X      
Nevada       X12      
Wisconsin       X      
Michigan   X13     *    
Alabama       X     X14
Minnesota              
Wyoming              
New Mexico       X9      
Pennsylvania              
2 That personal information about the employee is discussed
3 Employee makes written requests for open
4 Employee requests closed (executive session)
5 That matter involves dismissal and “matters of privacy” unless employee requests open
6 That public body specify the purpose of the executive session (includes discipline, but may not include routine performance review)
7 Employee requests open
8 But must give employee 24 hours advance notice and employee may opt for public session
9 Provided discussion concerns individual employee and not employees in general
10 Employee doesn’t opt for open session and final decision on personal action is taken in open session
11 Unless evidence or argument is to be heard on charges
12 But vote to dismiss public employee must be open meeting
13 May be closed if requested by employee
14 Closed on condition that public employee doesn’t request it to be open and that conclusions regarding performance review are summarized in open meeting

Report to the Council of the City of Ottawa Regarding the Investigation of the Closed Meetings of Ottawa City Council held on December 19, 2008, January 6, 2009 and January 14/15, 2009

Background

The Meeting Investigator was appointed pursuant to a decision of City Council dated November 28, 2007 to exercise the powers of a Meeting Investigator under section 239.1 of the Municipal Act, 2001 as amended. These powers include the carrying out of investigations to determine whether the City has complied with all legislative provisions set out in the Act and the City’s procedure by-law respecting open meetings.

The complaints

Seven Requests were received to investigate closed meetings held by Ottawa City Council on December 19, 2008, January 6, 2009 and January 14/15, 2009. All requests were acknowledged and investigated. In addition one “open letter” was received complaining of a lack of disclosure by the City of Ottawa of information relating to a strike of Public Transit workers at meetings taking place during this time frame. This letter was acknowledged but not investigated, as the Meeting Investigator’s authority does not extend to requiring municipalities to hold public meetings.

The Requests for Investigation raised the following concerns:

  1. The results of a public opinion poll (Transit Strike Survey) were discussed in camera but not in a public meeting (January 6, 2009).
  2. The examination of the public opinion poll (Transit Strike Survey) which took place in camera was much more detailed than the examination carried out in the public session.
  3. The reasons for resolving in camera on January 6, 2009 were too general (Collective Bargaining).
  4. Matters not relating to Collective Bargaining may have been discussed at the in camera meeting on December 19, 2008.
  5. A member of Council raised a point of privilege and introduced a Motion without notice to censure a councillor which motion was considered in camera at the January 14, 2009 meeting.
  6. City Council considered measures to minimize the effects of the strike of Public Transit workers behind closed doors.
  7. Members of the public were forced to wait long periods of time while members of Council discussed matters in camera that affect all residents of the city.

There was some duplication in the concerns expressed, and some people included more than one concern in their Request.

The investigation

Everyone making a request was contacted either in person or by e-mail upon receipt of their request. They were also contacted following the Investigator’s initial review of city records pertaining to the meetings and interviews with city staff and Councillors. The purpose of the second contact was to provide an opportunity to expand upon or explain their original concerns.

The records reviewed include the Agendas of all three Council Meetings, the Minutes of both the open and closed parts of all Council Meetings, the record of Council Disposition, slides of power-point presentations and correspondence passing between staff and elected representatives.

Interviews were also held with eight councillors and five members of staff over a three-day period.

Legislative requirements for Closed Door Meetings

A limited right of the public to observe municipal councils in action was first recognized in Ontario in the Consolidated Municipal Act of 1922. This legislation provided only that “ordinary meetings of every council shall be open and no person shall be excluded therefrom except for improper conduct”. No restrictions were placed on Special Meetings of Council or on Committee meetings.

During the subsequent 70 odd years, two provincial reports recommended more stringent restrictions on a municipality’s right to hold closed meetings to conduct public business and many municipalities, feeling the winds of change, voluntarily adopted procedure by-laws limiting their right to conduct business behind closed doors. The movement towards more open government was encouraged by judicial decisions giving a broad interpretation to the existing provincial legislation and the self-imposed limitations adopted by some municipalities in their procedure by-laws.

Finally, in 1994 the Provincial government, acting on the recommendations of the Provincial/Municipal Working Committee on Open Government some 10 years earlier, enacted the Planning and Municipal Law Statute Law Amendment Act, which came into effect on January 1, 1995. This legislation forms the basis of the open government provisions of the Municipal Act, 2001, which is, with the modifications contained in Municipal Statute Law Amendment Act, 2006 (formerly Bill 130) still in effect today.

Although change was a long time coming, when change did come it constituted a huge step forward. There was for the first time a legislative recognition that transparency in the decision making process is essential for true democratic government to flourish at the local level.

This important piece of legislation is readily available in its entirety on the web at http://www.e-laws.gov.on.ca/ but a summary of the more important features follows:

  1. The principle of openness extends to all meetings of City Council, its committees, and most local boards.
  2. The principle can only be departed from if the subject matter being considered is one of the following:
  • the security of the property of the municipality or local board;
  • personal matters about an identifiable individual, including municipal or local board employees;
  • a proposed or pending acquisition or disposition of land by the municipality or local board;
  • labour relations or employee negotiations;
  • litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board;
  • advice that is subject to solicitor-client privilege, including communications necessary for that purpose;
  • a matter in respect of which a council, board, committee or other body may hold a closed meeting under another Act.
  1. Before holding a closed-door meeting or part of a meeting, Council must pass a motion indicating that it is holding a closed meeting and “the general nature of the matter to be considered at the closed meeting”.
  2. There shall be no votes during closed meetings except for procedural matters or to give directions to staff
  3. A record shall be kept of all resolutions, decisions and other proceedings taken in camera.

By-law No. 2006-462 of the City of Ottawa governing the proceedings of its Council and Committees largely mirrors the provisions of section 239 of the Municipal Act with these important differences:

  1. The Procedure By-law requires that a motion to close a meeting or part of a meeting state not only the “general nature of the matter to be considered at the closed meeting” but that it do so “by reference to the specific issue to be considered at the closed meeting”; and
  2. The Procedure By-law prescribes the details of the public notice that must be given of all Council meetings as follows:

(1) Notice of a regular meeting of Council shall be given by publication in a daily newspaper no later than the Friday immediately prior to the meeting.

(2) Notice of a special meeting of Council will, where time permits, be given by publication in a daily newspaper no later than the Friday immediately prior to the meeting, and, at a minimum, by means of a public service announcement at least three hours prior to the meeting.

(3) Notice of an emergency meeting shall be published as soon after the meeting as possible.

(4) Advance notice must be given of all but emergency meetings be they open or closed.

(5) Notice must include the time and place of the meeting and, in the case of a Special Meeting, shall indicate the purpose of the meeting and whether the meeting was called by the Mayor, or Chair or upon petition.

The December 19, 2008 meeting of Council

The meeting on Friday, December 19, 2008 was a Special Meeting of Council called by the Mayor “To consider matters related to collective bargaining for OC Transpo”. Notice of this meeting was given to all Councillors two days prior to the meeting, well within the time prescribed by section 14 of the Procedure By-law, and public notice of the meeting was given by means of a public service announcement the day prior to the meeting, thus complying with the requirements of section 33.1 of the by-law.

A review of the Minutes of this meeting indicates that a Motion to Resolve In Camera was moved, seconded, and carried. The Motion reads as follows:

“BE IT RESOLVED that Council resolve in camera pursuant to Subsections 13. (1) (b) personal matters about an identifiable individual, including staff; (d) labour relations or employee negotiations; and (f) the receiving of advice that is subject to solicitor-client privilege, including communications necessary for that purpose, of Procedure By-law 2006-462, with respect to matters related to collective bargaining for OC Transpo.”

Although the Motion to go in camera referred to “personal matters about an identifiable individual, including staff”, a review of the Minutes of this meeting and interviews with both members of Council and staff who attended the meeting confirms that there was no discussion at the meeting of any subject other than that which occurred during or following a briefing by the City Clerk and Solicitor on the state of labour negotiations with three CUPE LOCAL 5500 bargaining units. The explanation given for the inclusion of the words “personal matters about an identifiable individual, including staff” was that a councillor had requested an opinion from the City Clerk and Solicitor as to the procedure that might be available to Council to censure a Councillor for comments made to the media regarding the handling of strike-related matters and a reply had been sent indicating that a motion of censure was one possible recourse open to Council. When the Agenda was prepared the words in question were included in the motion to cover the possibility that such a motion might be brought during the in camera portion of the meeting.

The meeting, which began at 10 o’clock in the morning in open session concluded at one o’clock in the afternoon. Approximately two and one-half of the three-hour meeting was held in camera. No resolution to rise and report appears to have been moved at the end of the in camera portion of the meeting and no report of what had been discussed was given in open session at the conclusion of the closed meeting.

My conclusion with respect to this meeting is that proper notice of the meeting was given, a proper resolution passed prior to resolving in camera and that all matters considered at the closed meeting fell squarely within the open meeting exceptions for solicitor/client privilege or employee negotiations.

The January 6, 2009 meeting of Council

The meeting held on January 6, 2009 was also a Special Meeting called by the Mayor “to consider matters related to the ATU Local 279 strike and possible mitigation measures and by-laws resulting from motions adopted by Council.”

Notice was sent to members of Council on December 31, 2008 and a Public Service Announcement was sent to all newspapers and posted on the web on January 5, 2009.

The meeting was called for 10 o’clock in the morning and concluded at three o’clock in the afternoon. It confirmed the Minutes of the in camera meeting of December 19 then carried a motion to resolve in camera.

This motion followed basically the same wording as the motion to resolve in camera at the December meeting omitting the reference to “personal matters”. It reads:

“BE IT RESOLVED that Council resolve in camera pursuant to Subsection 13 (1) d) labour relations or employee negotiations; and (f) the receiving of advice that is subject to solicitor-client privilege, including communications necessary for that purpose, of Procedure By-law 2006-462, with respect to matters related to collective bargaining for OC Transpo.”

A review of the Minutes of the In Camera meeting reveals that Council received two presentations during the closed session. The first consisted of an up-date on matters related to the on-going strike by the City Clerk and Solicitor and the second consisted of a presentation by the Senior Vice President, Harris/Decima on the results of a survey with respect to the strike. Councillors and staff indicated that the presentations and questions arising from the City Clerk and Solicitor’s presentation took up the larger part of the three hours Council was meeting in camera. The presentation of the Harris/Decima survey was relatively brief and resulted in few questions as the Mayor made it clear that any questions that did not relate directly to the formation of a bargaining strategy should be held and asked in open session. Council directed that the same presentation be made in Open Session.

The Minutes of the In Camera meeting show that a motion was made at the end of the meeting to “move out of Camera and resume in Open Session”. There was no motion to report and no indication that any report of the matters considered in closed session was given when Council reconvened in Open Session.

Council continued to meet in Open Session for two hours after the conclusion of the in camera portion of the meeting. Although there is no mention of receiving the Harris/Decima presentation, both staff and members of Council confirm that the Vice-President repeated his presentation in full at this time. A presentation was also given in open session by staff on “Community Mobility During Transit Strike Mitigation Strategies, Contingency Plan - Phase 2”.

My conclusions with respect to this meeting are as set out above with respect to the December 19, 2008 meeting. Proper notice of meeting was given, a resolution was passed prior to resolving in camera which met the requirements of both the Act and the City’s Procedure By-law, and all matters discussed fell within the stated exemptions from the open meeting requirements.

The January 14/15, 2009 meeting of Council

The meeting that commenced on January 14 and concluded on January 15 was a regular meeting of City Council.

Notice of the meeting was published in the local newspapers on January 9, 2009 and a draft Agenda was posted on the same date. Neither the draft Agenda nor the Final Agenda which was posted on January 13 indicated that a motion would be made to go in camera.

A review of the Minutes indicates that the open session of Council began at 10 am and that it resolved in camera at 11:35 on the passage of the following motion:

“BE IT RESOLVED THAT the Rules of Procedure be waived to permit the receipt of a briefing from the City Clerk and Solicitor with respect to matters related to collective bargaining for OC Transpo; and

BE IT RESOLVED that Council resolve in camera pursuant to Subsections 13.(1) (b) personal matters about an identifiable individual, including staff; (d) labour relations or employee negotiations; and (f) the receiving of advice that is subject to solicitor-client privilege, including communications necessary for that purpose, of Procedure By-law 2006-462, with respect to matters related to collective bargaining for OC Transpo and other transit strike related matters”.

The in camera session of Council began at 11:35 am on January 14 and ran until 8:30 in the evening at which time it was recessed until 11 am the next day. The meeting then continued from 11am on January 15 to 4 pm at which time a motion was passed to move out of Camera and resume in Open Session. The open session concluded at 6:30 pm on January 15.

The first matter dealt with in camera concerned Councillor Doucet.

Interviews with staff and Councillors indicate that prior to resolving in camera there was a brief discussion of a draft motion to censure Councillor Doucet for his actions in speaking to the media concerning the City’s negotiations with ATU Local 279. The draft motion alleged that the Councillor’s actions in making these comments were contrary to a decision by Council designating the Mayor, the City Manager and the General Manager, Transit Services as the City Spokespersons with respect to issues involving labour actions by ATU Local 279. The Minutes give no indication how the matter was first raised in open session. However, as there was no notice of the motion to censure the Councillor on the Agenda and no motion to waive the Rules of Procedure it can only be assumed that the matter was raised as a point of privilege. From interviews with those at the meeting it would appear that the Mayor did not rule on the motion or ask for a seconder but indicated that the matter would be dealt with during the closed meeting which was to follow. At some point Councillor Doucet indicated that he wished to make a public apology for his comments but it is not clear whether that indication was given before or after Council resolved in camera.

There are two exceptions to the open meeting requirement that could apply to justify an in camera discussion of the motion to censure Councillor Doucet. The first is the exception relating to “personal matters about an identifiable individual, including a municipal employee” and the second is the exception for matters that are “labour relations or employee negotiations”. As reference is made to both exceptions in the Motion to resolve in camera, and as there is no record of the discussion that took place at the time Council resolved to go in camera, it is difficult to know for certain which exception Council relied on when it referred the matter to the closed meeting. Further, if Council relied on the exception relating to personal maters it is not clear who the “identifiable individuals” were. At first glance one would think it was the Councillor himself, but several Councillors indicate that there was also concern for the individuals mentioned by Councillor Doucet in his media comments. I do not believe that this matter falls within the exception described as “personal matters about an identifiable individual” whoever you consider the identifiable individual.

A number of investigators and adjudicators have considered the meaning of “personal matters” as used in this, or similar legislation. One such case is the recent investigation of the closed meeting of the Township of Wainfleet Council in June 2008. The investigator in this case reviewed the definition of “personal matters” under the Municipal Freedom of Information and Protection of Privacy Act before concluding that the Township Council was justified in holding a closed meeting to select citizen members for the Wainfleet Servicing Strategy Public Liaison Committee. The decision was based on the fact that the applications revealed personal information about the applicants. The opposite result was obtained in a recent case decided by an Adjudicator for the Ontario Information and Privacy Commissioner. In this case, the Adjudicator held that the Municipality of Clarington was obliged to produce a copy of the CAO’s report on the Municipal Solicitor on the grounds that the subject matter of the meeting at which the report was considered (“the review of legal services”) was not a “personal matter” but rather a “professional” or “business” matter. The limited amount of information I have received with respect to the motion of censure involving Councillor Doucet leaves me in considerable doubt that the information concerning any individual which would be revealed during the debate would be “personal” as opposed to “professional” or “business” related.

The other possible exception from the requirement to consider this matter in an open meeting is that the matter being considered was in substance “labour relations or employee negotiations”. My interviews with a number of councillors indicates that the goal of the discussion, for some at least, was to emphasize to Councillor Doucet the adverse effect his comments to the media were having on achieving a speedy resolution to this labour dispute. Seen in this way, it is possible to categorize the debate on the point of privilege as part of the overall package of discussions on the subject of employee negotiations.

A number of other matters were considered during this 14 hour closed session.

Three presentations were made by staff. The presentations included an ATU 279 Strike Update by the City Clerk and Solicitor, a presentation on the issue of scheduling by the General Manager, Transit Services, and a briefing by Senior Legal Counsel on the risks associated with opening the Transitway to the public.

The Agenda, the Minutes and the Disposition of Council Business all indicate that Council received one presentation at its Open Session on January 15 that being a presentation on strategies to alleviate the effect of the ATU strike. In point of fact, there were four staff presentations: two which had been given earlier in camera (Transit Scheduling and Risks of Opening the Transitway to the Public) and two that addressed the question of alleviating the effects of the strike — one from Public Works and one from Social Services. Interviews confirmed that, although the authors of the last two mentioned presentations attended the in camera session, they did not give their presentations in camera.

My conclusions concerning this meeting are as follows:

  1. The requirements in the Act and the Procedure By-law concerning the giving of notice and the passing of a resolution prior to going in camera were met.
  2. The City Clerk and Solicitor’s presentation fell within the open meeting exemption relating to “advice that is subject to solicitor-client privilege”.
  3. All other presentations and discussions, which took place during the closed meeting, including the discussion of Councillor Doucet’s comments, were properly considered part of employee negotiations authorized by subsection 13 (d) of the Procedure By-law.

Conclusions with respect to the concerns raised in the seven requests

My conclusions with respect to each of the concerns set out on page one are as follows:

  1. The discussion of the public opinion survey, which took place in camera on January 6 related solely to the issue of what effect the findings should have on the City's bargaining position. This falls squarely within the exemption for “employee negotiations” set out in clause 13 (1)(d) of the Procedure By-law.
  2. Interviews do not support the allegation that there was a more detailed examination of the public opinion poll in camera than in open session. As noted above, there was a full presentation of the Harris/Decima survey in open council on January 6, 2009. While it is true that there was no opportunity for a discussion of this survey by the members of the public attending this meeting, nor for members of the public to make their own presentations, the open government provisions of the Municipal Act do not require municipal councils to receive public input during their deliberations, nor is it the practice of this municipality to do so at this stage of their deliberations.
  3. The wording of the motion to resolve in camera on January 6, 2009 was rather general and could no doubt have more clearly stated the subject matter to be discussed. There is little doubt, however, that the wording meets the requirements of the Municipal Act in that it states the general nature of the matter to be considered”. Further, I believe the reference in the motion to “collective bargaining for OC Transpo” is sufficient to meet the requirement of the Procedure by-law that the motion “refer to the specific issue to be considered at the closed meeting”.
  4. It is understandable that one might conclude from the wording of the motion to resolve in camera at the December 19 meeting of Council that there would be some discussion of a “personal matter” and the Minutes do not reveal any such discussion. The explanation for this apparent discrepancy is, however, perfectly reasonable. At the time the Agenda was drawn up a motion dealing with Councillor Doucet’s comments to the media was anticipated but by the time of the meeting it appeared that the parties to the labour dispute were returning to the bargaining table and Councillor Doucet’s comments became a matter of much less concern and this part of the Motion was not proceeded with.
  5. The wording of the proposed motion to censure Councillor Doucet at the January 14 meeting indicates that the conduct complained of was speaking to the media on collective bargaining issues when Council had, at a previous meeting, designated other spokespersons on this matter. There are no Minutes to indicate the nature of the discussion that took place in camera but the majority of councillors interviewed recalled that most of the discussion involved bringing to the Councillor’s attention the adverse effect that his conduct was having or could have on the duration of the strike, a matter falling within the legislated exception to the requirement to hold the meeting in public.
  6. As noted above Council heard and discussed three staff presentations in camera at its January 14/15 meeting. The first presentation consisted of a report from the City Clerk and Solicitor. A reading of the slides prepared for use in this presentation leaves no doubt that that this communication and all discussion arising from it fall squarely within the rules relating to solicitor-client privilege. The same could be said for the second presentation by senior legal counsel outlining the risks associated with opening the Transitway to public traffic. This communication would also have been absolutely privileged if Council had not passed the motion that it did authorizing its presentation to the public. The major portion of the discussion that took place relating to measures, which could be taken to minimize the effect of the strike occurred in open session. This included the discussion that took place following the repetition in public of senior legal counsel’s presentation and the Harris/Decima survey presentation and the presentation of two additional presentations on mitigation that had not been given in camera. One was by Public Works and the other by Social Services.
  7. There is some justification for the final complaint, that members of the public were forced to wait long periods of time while members of Council discussed matters in camera. While there can be some sympathy for the public in these circumstances, public inconvenience falls outside the ambit of the Meeting Investigator's authority.

Recommendations

A wise judge once said “justice must not only be done, it must manifestly be seen to be done”. The same can be said for the principle of open government, and although I find Council's actions to have been in strict conformity with the provisions of the Municipal Act and the City's own by-law, there are certain steps which could be taken to demonstrate to the public more clearly that nothing improper is being done behind closed doors. The following recommendations, if implemented, would help achieve this goal.

  1. Minutes

The minutes of the meetings examined were found in most cases to be accurate and complete. As might be expected however, in an 18-hour meeting spanning over two consecutive days, there were several matters that could be considered as falling within the general category of “all resolutions, decisions, and other proceedings” which should have been recorded but were not. The first of these was the discussion that took place on the proposed motion of censure. Although the motion was never seconded, and accordingly never formally put before Council in the form of a motion, the amount of discussion on the matter justified some mention of it in the minutes of both the open session and the closed meeting. The appropriate note in the open meeting would be to record that a point of privilege had been raised by Councillor Wilkinson concerning Councillor Doucet’s statements to the media on strike related matters and that the Chair referred the matter to the closed meeting for discussion. The second omission relates to the identification of the three staff presentations made in open session. A reading of the Minutes indicates that one presentation was made, whereas in fact, a total of four presentations were made. Mention of one presentation in the minutes without reference to the others may have inadvertently contributed to the misapprehension that there were no others.

It is recommended that the disposition of any point of privilege raised in Council be included in the minutes of that meeting.

It is further recommended that each presentation to a meeting, open or closed, be specifically identified in the Minutes.

Although the times meetings were convened and adjourned were usually recorded, there were occasional lapses in this practice.

It is recommended that times of convening and adjourning meetings be noted in all Minutes.

  1. Motions to resolve in camera

The wording of the motions to resolve in camera, while accurate enough in identifying the section of the Procedure By-law authorizing the consideration of the matter in camera, and meeting the strict legal requirements, fails in some cases to refer to the specific issue to be considered at the meeting in as clear terms as possible. The intent of this subsection 13(3) of the By-law obviously is to give the average observer more than a reference to the statutory authority being relied on. It is to let him or her know what issue Council will be considering behind closed doors; the reference to the statutory authority should be secondary.

Using the example of the January 14/15 meeting:

(1) instead of moving that “Council resolve in camera pursuant to Subsections 13.(1) (b) personal matters about an identifiable individual, including staff” the resolution could have read in part:

….that Council meet in closed session to discuss a point of privilege (or motion to censure as the case may be) relating to comments made by a councillor concerning employee negotiations (subsection 239(2) (d) of the Municipal Act)

(2) instead of reading…”and (f) the receiving of advice that is subject to solicitor-client privilege, including communications necessary for that purpose, of Procedure By-law 2006-462, with respect to matters related to collective bargaining for OC Transpo and other transit strike related matters” the resolution could have read in part:

….the receiving of advice that is subject to solicitor/client privilege relating to employee negotiations with ATU Local 279 (subsection 239.(2) (f) of the Municipal Act).

Wording such as the above might give members of the public a better understanding of both “the specific issue to be considered at the closed meeting” to use the words of the Procedure By-law, and the reason the matter is considered appropriate for discussion at a closed meeting.

It is recommended that consideration be given to revising the wording of Motions to meet in closed session to more clearly indicate the specific issue to be considered.

  1. Rising and reporting

The Minutes of both the open and closed sessions of Council meetings do not show a consistent practice of concluding closed sessions with a motion to rise and report. Nor do they show that any report is normally made in open session confirming that (a) a closed meeting was held, (b) the general nature of the matters discussed (complete with the titles of any presentations received if this would not breach confidentiality) and (c) that votes taken were for procedural matters or to give direction to staff only. Such a procedure is considered best practice and may have allayed, for example the concern that was expressed that Council had considered more matters at its in camera meeting on January 14/15 than in fact was the case.

It is recommended that Council conclude each in camera meeting with a motion to rise and report, that the Chair report in open session the fact that Council had met in camera, the matters which were considered, and that no votes were taken other than to give direction to staff or to deal with procedural matters.

It is further recommended that the Chair's report be recorded in the minutes of the public meeting.

Public report

I received the full co-operation and support in the conduct of this investigation from members of Council and staff as well as those requesting an investigation and thank all for their assistance.

This report is forwarded to Council of the City of Ottawa and is required to be made available to the public.

Douglas R.Wallace

Meeting Investigator

Report to Council on an Inquiry by the Meetings Investigator: Budget Review Board

Request for Investigation

On January 8, 2018, I received a Request for Investigation (the “Request”) from two Councillors (the “Complainants”) regarding the meeting practices of the Budget Review Board (the “BRB”), a group of City staff and Members of Council established by City Council during the 2016 Budget process to provide a budget challenge function to the annual budget process.

The Request specifically called into question “the process in which the meetings are held and the information discussed may not be appropriately transparent to full Council or the general public.”

The Request also referenced statements made on a local radio program by a member of the BRB suggesting unreported information had been shared with the BRB and an unreported meeting took place a month prior to Council’s consideration of the 2018 Operating and Capital Budgets, which was not reflected in the BRB’s confidential minutes obtained by the complainant.

Meeting Investigator Jurisdiction

The Municipal Act, 2001 (the “Act”) requires that all meetings of Council, its committees or local boards shall be open to the public, except as permitted by several specific, discretionary exceptions:

239 (1) Except as provided in this section, all meetings shall be open to the public.

Exceptions

(2) A meeting or part of a meeting may be closed to the public if the subject matter being considered is,

(a) the security of the property of the municipality or local board;

(b) personal matters about an identifiable individual, including municipal or local board employees;

(c) a proposed or pending acquisition or disposition of land by the municipality or local board;

(d) labour relations or employee negotiations;

(e) litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board;

(f) advice that is subject to solicitor-client privilege, including communications necessary for that purpose;

(g) a matter in respect of which a council, board, committee or other body may hold a closed meeting under another Act;

(h) information explicitly supplied in confidence to the municipality or local board by Canada, a province or territory or a Crown agency of any of them;

(i) a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence to the municipality or local board, which, if disclosed, could reasonably be expected to prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization;

(j) a trade secret or scientific, technical, commercial or financial information that belongs to the municipality or local board and has monetary value or potential monetary value; or

(k) a position, plan, procedure, criteria or instruction to be applied to any negotiations carried on or to be carried on by or on behalf of the municipality or local board.

Other criteria

(3) A meeting or part of a meeting shall be closed to the public if the subject matter being considered is,

(a) a request under the Municipal Freedom of Information and Protection of Privacy Act, if the council, board, commission or other body is the head of an institution for the purposes of that Act; or

(b) an ongoing investigation respecting the municipality, a local board or a municipally-controlled corporation by the Ombudsman appointed under the Ombudsman Act, an Ombudsman referred to in subsection 223.13 (1) of this Act, or the investigator referred to in subsection 239.2 (1).

Educational or training sessions

(3.1) A meeting of a council or local board or of a committee of either of them may be closed to the public if the following conditions are both satisfied:

The meeting is held for the purpose of educating or training the members.

At the meeting, no member discusses or otherwise deals with any matter in a way that materially advances the business or decision-making of the council, local board or committee.

Anyone who wishes to question the appropriateness of a meeting of Council, its committees or local boards (not including police services boards and public library boards) that was closed in full or in part, may request an investigation.

Section 239.2 of the Act outlines my authority as Council-approved Meetings Investigator:

239.2 (1) Without limiting sections 9, 10 and 11, those sections authorize the municipality to appoint an investigator who has the function to investigate in an independent manner, on a complaint made to him or her by any person, whether the municipality or a local board has complied with section 239 or a procedure by-law under subsection 238 (2) in respect of a meeting or part of a meeting that was closed to the public, and to report on the investigation.

In carrying out this function, I may exercise such powers and perform such duties as may be assigned to me by Council. As required by subsection 239.2(5) of the Act, I operate with regard to the importance of:

  • My independence and impartiality as investigator;
  • Confidentiality with respect to my activities; and
  • The credibility of the investigative process.

Inquiry Process

Upon receipt of the Request, I confirmed my intent to review the Request under my authority as the City of Ottawa’s Meetings Investigator.

As a preliminary step, and prior to launching a formal inquiry, I conducted a thorough intake analysis to determine if the Budget Review Board, and the issues raised within the Request, were within my authority as Meetings Investigator.

As part of the intake analysis, I reviewed a significant amount of documentation including:

  • Documents relating to the creation, membership and membership changes of the Budget Review Board;
  • A chronology of Budget Review Board meetings;
  • Terms of Reference for the Budget Review Board;
  • Meeting agendas, minutes and presentations of the Budget Review Board; and
  • The transcript of a CFRA radio interview (“Rob Snow program”) of December 14, 2017.

Based on the issues raised in the Request and my preliminary review of the documentation, I was of the opinion that there continued to be outstanding questions and I opted to proceed with an inquiry into the matter in my capacity as Meetings Investigator, in accordance with the Municipal Act, 2001.

On February 20, 2018, I issued formal notice of my intent to initiate an inquiry (the “Inquiry”) to the City Clerk and Solicitor, for the purposes of conducting interviews with relevant City staff and Members of Council.

I conducted 14 interviews with members of the Budget Review Board and a number of other Members of Council.

I indicated to all parties, and note for the purposes of this report, that I conducted the Inquiry under a collaborative and cooperative approach. Although subsection 239.2(9) of the Municipal Act, 2001 provides me with the authority to exercise the investigative powers of a municipal ombudsman (sections 223.14 to 223.18 of the Act) to summon relevant persons and examine them under oath, I elected not to exercise such powers unless proven necessary. I received full co-operation from all parties during this Inquiry and was consequently not required to exercise these powers.

Background

Annual Budget Process

The City creates its annual Operating and Capital Budget through an intensive process that involves review, consultation and drafting.

The budget process for 2015-2018 tax-supported budgets was initially established as part of the 2014-2018 Governance Review (ACS2014-CMR-CCB-0062) and includes multiple steps.

First, the City Treasurer prepares a proposed timetable and outlines that year’s budget directions. The report identifies the recommended budget increases to the City’s various Boards and Commissions who then develop their respective draft budgets within those allocations.

Next, the City Manager and the Mayor’s Office begin the work of developing the annual draft budgets, consistent with Council’s approved budget directions. This stage, to be summarized in more detail below, includes consultation with individual Members of Council and review of each departments’ annual budget submissions.

Following the extensive review, a consolidated draft budget is tabled at Council, reflecting all operating and capital pressures and identifying any resulting service implications.

The draft budget is then put up for public consultation, including multi-ward meetings with Members of Council and senior staff, to allow for the response to and development of options based on public feedback.

After the public consultations, each Standing Committee considers the proposed budget and hears public delegations before considering and approving any revisions to the draft budget. After their review, each Standing Committee recommends a budget for their respective service areas for review and adoption by City Council.

Finally, sitting as Committee of the Whole, Council considers and makes amendments to the draft Operating and Capital Budgets, including the budget submissions from the Commissions and Boards. After completing its review, City Council formally adopts the annual operating and capital budgets.

Budget Challenge Process

As noted above, at the outset of each budget cycle, the City Treasurer releases a report that details the budget timetable and provides budget directions through the Finance and Economic Development Committee, and Council. Submissions for the Draft Operating and Capital Budget are then collected for a budget challenge process that reviews departmental plans and annual budget submissions.

As outlined in the report titled, “Budget Challenge and Service Reviews” (ACS2015-CMR-OCM-0032), the budget challenge process originally comprised four stages. The report proposed the establishment of the Budget Review Board to be included in the existing budget challenge process as follows:

  1. The Finance Department Budget Challenge, where Finance staff reviews departmental budgetary estimates for revision or confirmation;
  2. The second stage includes the following two elements:
    1. The Portfolio Budget Challenge, where the City Manager and Deputy City Managers meet with each department head to review their budgets against legislative requirements and Council priorities, applicable directions and budget guidelines;
    2. The Ward Councillor Consultation, where the Mayor and City Manager meet with each Councillor to solicit input on priorities and efficiency savings;
  3. A review by the Budget Review Board, which provides a further level of evaluation and analysis of departmental budgetary estimates;
  4. A Corporate Review, where the Mayor and the Executive Management Committee assess all submissions; and,
  5. A Final Review by Mayor, City Manager and Treasurer prior to the finalization of the draft Operating and Capital Budgets.

Creation of the Budget Review Board

In December 2015, the Budget Review Board, a working group of senior City staff and Members of Council, was established to enhance the existing four-stage budget challenge process, summarized above, and provide for the systematic tracking and reporting of budget risks.

According to the Board’s Terms of Reference, the mandate of the Board is “to provide a review of the annual draft operating budget estimates focusing on critical budget assumptions to ensure that budget numbers have been sufficiently analyzed, challenged and vetted and to review the quarterly budget-to-actual reports prepared by staff.”

The Terms of Reference further define the Board’s three principal roles:

  • To review the draft operating and capital budget, including a review of each department’s budget estimates;
  • To review non-departmental, capital formation, common revenues, taxation estimates, as well as the format and presentation of the budget; and
  • To conduct quarterly reviews on the status of the budgeted versus actual results before the quarterly and year-end Operating and Capital Budget Status reports are finalized and issued to Council for their consideration.

The Board is composed of a combination of senior City staff and Members of Council.

Timeline

The Budget Review Board was established in December 2015, as part of the 2016 Budget deliberations.

2017 Budget

In its first year, the Budget Review Board met four times outside of the annual budget process: February 10, 2016, April 12, 2016, May 18, 2016, and August 19, 2016.

In June 2016, Council approved the “Proposed 2017 Budget Timeline and Consultation Process” report (ACS2016-CMR-FIN-0018). As part of the budget timetable, the report proposed separate meetings of the Budget Review Board (October 24-28th, 2016) to review the draft budget for each Standing Committee and that these meetings include the Chairs and Vice-Chairs of the respective Committee. It was further proposed that the review would take place prior to the actual tabling of the draft budget in November 2016.

The Budget Review Board met once, on November 7, 2016, before the tabling of the draft budgets. The Budget Review Board meetings were scheduled for October 24-28, 2016, however, they were rescheduled at the request of Financial Services, as work was still underway on the preparation of the 2017 draft budget.

It is my understanding that the proposed Budget Review Board meetings with Standing Committee Chairs and Vice-Chairs did not occur as originally intended. In an email to all Members of Council prior to the tabling of the 2017 draft budgets, the City Manager confirmed that his Office, the City Treasurer, the Mayor’s Office had held individual meetings with the Standing Committee Chairs and Vice-Chairs early in September to discuss priorities. However, due to a number of issues, the Budget Review Board meetings with Standing Committee Chairs and Vice-Chairs prior to the tabling of the draft budgets did not occur. The meetings occurred subsequent to the tabling of the draft budget but prior to Standing Committee consideration of their respective Committee’s 2017 Draft Budget as follows: November 14, 2016 Information Technology Sub-Committee (ITSC) and Environment Committee (EC); November 18, 2016 Agriculture and Rural Affairs Committee (ARAC); November 22, 2016 Finance and Economic Development Committee (FEDCO); November 25, 2016 Transportation Committee (TRC); and, November 29 Community & Protective Services Committee (CPSC) (quorum was not achieved for the CPSC meeting).

The draft budgets were tabled on November 9, 2016 and Council formally adopted the 2017 Operating and Capital Budgets on December 14, 2016.

2018 Budget

In 2017, the Budget Review Board met three times outside of the annual budget process: February 24, 2017, May 26, 2017 and August 18, 2017.

On June 14, 2017, Council approved the “Proposed 2018 Budget Timeline and Consultation Process” report (ACS2017-CSD-FIN-0013) which proposed a single Budget Review Board meeting to review budgetary information with “a particular emphasis on operational, economic, legislative and strategic adjustments; and any efficiency savings or revenue enhancements included in the proposed 2018 draft budget.” It was further proposed that Committee Chair consultation, to discuss individual Committee priorities, would occur between October 9–18, 2017, in advance of the BRB’s meeting. Standing Committee Chairs and Vice-Chairs would have an additional opportunity to review their respective draft operating and capital budget documents as part of the agenda clearing meetings, with input from the relevant department head(s).

Between September 14, 2017 and October 18, 2017, the Mayor’s Office along with the City Manager, held individual meetings with Councillors to review Ward priorities and receive input prior to the tabling of the draft budgets.

The Complainants also indicated that Standing Committee Chairs were once again not included in the BRB’s review of the draft budgets and drew this fact to my attention for my consideration. The City Manager, in his interview, explained that such consultations are not compulsory but that they can take place on an as needed basis. He stated that none were needed in the 2017 Budget Review Board context.

After review of this particular matter, I have concluded that the involvement of Standing Committee Chairs in the BRB’s review of the draft budgets, and whether or not they occur, is a matter of policy and therefore not within my jurisdiction. Members of Council who consider the BRB consultations with Committee Chairs to be a budget process issue may wish to pursue the matter at FEDCO or with Council itself.

The Budget Review Board meeting took place on November 3, 2017. This was the final meeting of the Budget Review Board before the tabling and adoption of the 2018 Operating and Capital Budgets.

At this meeting, the Treasurer provided the Board with an overview of the 2018 Draft Operating and Capital Budgets. The Treasurer advised the Board that, at that point in time, staff were forecasting a small deficit for the City. The Treasurer further advised there were some outstanding matters that could positively affect the budget, by either offsetting the small deficit or resulting in a small surplus.

The 2018 Draft Operating and Capital budgets were tabled with Council on November 8, 2017. Between November 9 and December 12, 2017 all Standing Committees along with the Transit Commission, Ottawa Police Services Board, Ottawa Public Library Board, Ottawa Board of Health and Advisory Committees held meetings to consider the 2018 draft budgets for their respective areas and receive public delegations.

On December 7, 2017, a group of eight Councillors announced, via Twitter, their intention to introduce a motion as part of Council’s budget deliberations of December 13 2017. The draft motion proposed a “one-time dedicated infrastructure levy set at 0.5 percent to be added to the citywide property tax bill with all revenues directed towards tax-supported capital asset renewal.”

The following day, the Treasurer was advised that the City had received the final supplementary tax assessment from the Municipal Property Assessment Corporation (the “MPAC assessment”). The Treasurer alerted the City Manager and the Mayor’s Office that there was now a likely surplus as a consequence of this development, though no number had been yet confirmed. She advised that staff would be working over the weekend to confirm the number. Late in the day on Monday, December 11, 2017, the Treasurer confirmed the amount of the surplus to the City Manager and the Mayor’s Office. Between Monday evening and Wednesday morning, another motion, targeting infrastructure spending, was drafted by the Mayor’s Office and the information was shared by the Mayor’s Office with a select number of Councillors.

On December 13, 2017, City Council considered the final budget recommendations and adopted the 2018 Operating and Capital Budgets. At the beginning of Council’s consideration of the annual budget, the Mayor began with introductory remarks and proceeded to ask the Treasurer, as has been past practice, whether there were any material changes that should be brought to Council’s attention prior to beginning deliberations. In response, the Treasurer advised Council that there had been some developments since the draft budgets had been tabled on November 8, 2017, and staff were now forecasting a surplus for 2017. This surplus was attributed to a better than expected November month-end, the MPAC assessment and payment-in-lieu-of-taxes for several federal government properties. The Treasurer confirmed that these additional funds were available for Council’s use within the 2018 Budget.

The Mayor then introduced a motion, moved by himself and seconded by Councillor Cloutier, to allocate $10 million of the surplus funds to general infrastructure renewal in the 2018 Budget. Members of Council were then asked to introduce any other motions for consideration during the budget deliberations. Councillor Leiper introduced the competing infrastructure motion, which he later withdrew. Ultimately, the Mayor’s motion was carried unanimously.

On December 14, 2017, a few City Councillors appeared as guests on the Rob Snow program to discuss the City Budget. When asked when he became aware of the surplus, Councillor Hubley responded that, as a member of the BRB, he was aware, a month prior to Council’s consideration of the budget, that the City was “tracking into the plus and well into the plus.”

These statements led the Complainants to request the meeting minutes of the Budget Review Board, and in particular the minutes of the meeting of the BRB where the matter of the MPAC assessment was discussed as suggested by the Councillor’s comments on the radio. The confidential minutes supplied to the Complainants did not reflect the information referenced during the Rob Snow program. Consequently, the Request for Investigation was filed on January 8, 2018.

Analysis

Of primary interest during my intake analysis was determining if the open meeting provisions of the Municipal Act, 2001, and ultimately my jurisdiction as Meetings Investigator, applied to meetings of the Budget Review Board.

The Act requires that all meetings of a council, of a local board or of a committee of either, shall be open to the public, except for particular circumstances set out in the Act, referenced above.

Definition of a “Committee”

The first step in assessing the applicability of my jurisdiction was to determine if the Budget Review Board qualifies as a body that is subject to the open meeting provisions of the Municipal Act, 2001. Section 238 of the Act sets out definitions which apply to the open meeting provisions. Specifically, a “committee” is defined as (emphasis added):

any advisory or other committee, subcommittee or similar entity of which at least 50 per cent of the members are also members of one or more councils or local boards

The City’s Procedure By-law defines a “Committee/Commission” as, “a committee of Council and includes Standing Committees, Transit Commission, special committees and sub-committees.” The Procedure By-law further provides that:

“Only Members of the Council shall be appointed to the Standing Committees, Commissions and Sub-Committees of Council save and except the Transit Commission which shall consist of eight Members of Council and four Citizen Members and the Built Heritage Sub-Committee which shall consist of four Members of Council and three Citizen Members.”

The proposed composition of the Budget Review Board as set out in the “Budget Challenge and Service Reviews” report (ACS2015-CMR-OCM-0032), included the following members:

  • Mayor
  • City Manager
  • Treasurer
  • Deputy Treasurer
  • Manager of Budget and Financial Planning
  • City Clerk and Solicitor
  • Two Deputy City Managers
  • Chair of Audit Committee

During consideration of the staff report, the Finance and Economic Development Committee directed that the composition of the Budget Review Board be amended to include the Vice-Chair of the Audit Committee.

The final composition of the Budget Review Board included three Members of Council and seven City staff. According to the Terms of Reference for the BRB, Standing Committee Chairs may be invited to participate in the activities of the BRB, as required, but are not considered official members of the BRB.

In 2016, the Organizational Alignment resulted in changes to the staff membership of the Budget Review Board. Specifically, the two former Deputy City Manager positions were removed from the membership. The new membership now included three Members of Council and five City staff.

Despite the changes to the Budget Review Board’s composition since its inception, the number of elected officials has never exceeded the fifty percent threshold required under the Act’s definition of a committee.

Beyond composition, the Ontario Ombudsman has determined that the role and function of a group must also be examined when considering whether a body qualifies as a committee under the Act. Over the course of numerous reports, the Ombudsman has settled on the following distinction for determining if an entity is carrying out the functions of a committee or similar body:

“[W]hen groups primarily exchange information or advance positions a municipality has already decided upon without laying the groundwork for decision-making by council, the body will not constitute a committee. However, if groups have their own authority to make decisions or provide recommendations to council, they may be functioning as a committee.”[1]

As clearly stated in the Terms of Reference, the Budget Review Board does not make policy decisions affecting the City’s programs. Rather, the Budget Review Board was established as a means of providing a supplemental challenge function to staff’s existing budget challenge process. Specifically, the BRB was tasked with analyzing, challenging and vetting departmental budget estimates, created in line with Council’s budget directions. The BRB has not been delegated any decision-making authority and does not make recommendations to Committee or Council.

Through the course of my documentation review, including action summaries and interviews with members of the BRB, I have found no evidence to suggest the BRB has strayed from its core function of challenging budget assumptions and reviewing departmental budget estimates.

As the Budget Review Board meets neither the composition nor function tests described above, the BRB is therefore not a committee of Council under the Municipal Act, 2001 or the Procedure By-law. Consequently, the BRB is neither subject to the open meetings provisions of the Act nor my jurisdiction as Meetings Investigator.

Nonetheless, after reviewing the action summaries of the Budget Review Board, I did make suggestions to the Secretary of the BRB on ways to improve the record keeping for the BRB. Specifically, the action summaries list all those in attendance, without specifying whether an individual is a formal member of the BRB. To avoid any future confusion respecting the official composition of the BRB, I recommended that the meeting minutes should clearly and distinctly record the members of the BRB in attendance, those members who are absent or have sent regrets and list separately all others in attendance, including delegates or Standing Committee Chairs/Vice-Chairs. In response to these suggested, best practices, the Secretary of the Budget Review Board and the City Clerk and Solicitor have agreed to recommend these matters for the BRB to formally consider such revisions to its current, minute-taking process.

Additional Concerns

As noted above, the Request called into question the meeting practices of the Budget Review Board, but also focused on statements made by a member of the BRB which suggested unreported information had been shared with the BRB and unreported meetings may have taken place prior to Council’s consideration of the 2018 Operating and Capital Budgets.

While the initial intake analysis confirmed the Budget Review Board was not a committee that was subject to the open meeting provisions, there continued to be outstanding concerns of potential open meeting violations. I determined that interviews with relevant City staff and Members of Council were required to resolve the outstanding concerns and I subsequently initiated the formal inquiry.

Councillor Hubley’s Public Statements

The allegations of unreported information and meetings in the Request were largely based on comments made by Councillor Hubley when he appeared as a guest on the Rob Snow program (CFRA radio) on December 14, 2017:

“Rob, I'm actually on the Budget Review Committee along with the Mayor and Councillor Cloutier and the City Manager. So, we had an indication that we were doing very well this year because we meet on a monthly basis and we're tracking the pluses and the minuses so the actual number I don't think anybody really knew for sure until Monday because the City Manager had asked staff to triple-check that number -- he did not want it coming out until we were solid on the number. But, certainly, a month ago we knew we were tracking into the plus and well into the plus.”

Over the course of the Inquiry, it became evident that Councillor Hubley’s public statements did not accurately reflect the activities of the Budget Review Board.

During his interview with me, Councillor Hubley explained the context and content of his remarks during the radio interview. First, he stated that his intention was to speak strictly on his own behalf and not the BRB.  He further added that by saying: “we meet on a monthly basis…” and “certainly, we knew a month ago”, he was in fact referring to only four meetings of the BRB and the more specific date of November 3, 2017, which was the last meeting of the BRB.  He stated that there were no other meetings of the BRB than those reported and none after November 3, 2017. Councillor Hubley acknowledged that his comments as expressed could lead a reasonable person to conclude that several other meetings could have taken place prior to the last meeting of November 3, 2017 and a subsequent one on or about November 14, 2017.

The Councillor also explained that the words: “we knew we were tracking into the plus and well into the plus,” pertained only to his own and individual judgment and prediction. He confirmed that the MPAC property assessment issue was not specifically discussed at the BRB November 3, 2017 meeting. He personally noted however, in the supporting documents provided by the City Treasurer that the federal cash-in-lieu of property taxes was listed as an outstanding revenue issue. He subsequently concluded, that if that issue was resolved before the Council Budget meeting of December 13, 2017, the City would ultimately end the year with a considerable surplus. He also confirmed that he did not share that view with colleagues at the last BRB meeting and that he in fact learned of the specific surplus number from the Mayor’s Office a day or two before the Council meeting of Wednesday, December 13, 2017.

Based on my interviews, it is my understanding the Treasurer advised the BRB, on November 3, 2017, that City staff was indeed forecasting a small deficit for 2017, and that a few outstanding matters could help offset the deficit or result in a small surplus.

Councillor Hubley’s explanation about the number of meetings is consistent with the evidence gathered in the BRB documentation and the interviews.

I therefore accept Councillor Hubley’s clarification of his statements made on the Rob Snow program and find no evidence to support the allegation that the Budget Review Board held unreported meetings and was privy to unreported information regarding the 2017 deficit or surplus prior to the December 13, 2017 Council meeting.

Other Potential Meetings

Interviews with the Complainants and other Members of Council revealed concerns regarding other informal, private meetings that may have taken place leading up to Council’s budget deliberations on December 13, 2017, potentially in violation of the Act.

As summarized in the background, there were two motions before Council on December 13, 2017, both prepared and discussed among Members of Council before the meeting. With respect to the first motion, eight Councillors publicly confirmed their intention to support the motion when it was announced and circulated on Twitter, six days before the Council meeting. The second motion, introduced by the Mayor immediately following the Treasurer’s update at the Council meeting, appeared to have the necessary votes lined up before the meeting began. I understand this speculation was reinforced through private and public statements in the day or two following the Council meeting. In both cases, concerns that informal gatherings of Members of Council may have taken place were raised.

Up until recently, the definition of a “meeting” in the Act has simply been: “any regular, special or other meeting of a council, of a local board or of a committee of either of them.” This definition, described by the Ontario Ombudsman as “uninstructive and circular”[2], did not provide a great deal of nuance to address other types of gatherings that may be in violation of the open meeting provisions.

As Meetings Investigator for the City of Ottawa, I have been regularly called upon to provide guidance on how the open meeting provisions might apply in varying circumstances. Guided by positions taken by my fellow provincial colleagues, including the Ontario Ombudsman, the criteria I have relied upon in determining whether the open meeting provisions apply are as follows:

  1. Does the gathering involve a quorum of members of Council or a Committee of Council?
  2. If so, does the discussion or purpose of the gathering materially advance the business of Council?
  3. Do any of the exceptions referenced in Section 239 apply?

This working definition closely resembles a new definition of a “meeting”, formally incorporated into the Municipal Act, 2001 as part of changes introduced in Bill 68 (Modernizing Ontario’s Municipal Legislation Act, 2017).

Effective January 1, 2018, Section 238 of the Act now defines a “meeting” as (emphasis added):

“any regular, special or other meeting of a council, of a local board or of a committee of either of them, where,
(a) a quorum of members is present, and
(b) members discuss or otherwise deal with any matter in a way that materially advances the business or decision-making of the council, local board or committee.

Over the course of my interviews with Members of Council and City staff, I did not find any evidence of unreported formal or informal meetings between Members of Council leading up to Council’s budget deliberations on December 13, 2017, either by the group of Councillors supporting the Leiper motion which was withdrawn, or the group of Councillors supporting the Mayor’s motion which was adopted, that would meet the test described above.

I would like to take this opportunity to confirm that the open meeting provisions do not prevent Members of Council from having discussions, to gather informally or to seek support for a particular motion or initiative. That is the natural political process of municipal politics. Nevertheless, Members are cautioned to be mindful that these informal gatherings can have the potential to materially advance the business or decision-making of Council outside of the public domain, particularly if a quorum of Council or of a committee of Council is formed inadvertently.

Information Sharing

Finally, the matter of information sharing during the budget development process was raised for my consideration as part of interviews with several Members of Council. I conveyed to those interviewed, and I note for the purposes of this report, that how and when City staff or the Mayor report out information from the Budget Review Board or on the budgetary process generally, is a matter of policy that is not within my jurisdiction as Meetings Investigator. It is entirely up to Council to decide what information ought to be brought to the attention of Council as a whole, including how and when that information is disseminated.

Findings and Conclusions

The Request for Investigation not only called into question the meeting practices of the Budget Review Board, but also questioned public statements made by a member of the Budget Review Board which suggested unreported information had been shared with the BRB and unreported meetings may have taken place prior to Council’s consideration of the 2018 Operating and Capital Budgets. As indicated in my analysis above, additional claims of informal meetings that may have been in violation of the open meeting provisions were raised with me throughout the Inquiry.

I conclude that the Budget Review Board does not qualify as a committee under the Municipal Act, 2001 or the City’s Procedure By-law.  For this reason, the Budget Review Board is not subject to the open meeting provisions nor my jurisdiction as the City’s Meetings Investigator.

As noted in the report, the matter of Standing Committee Chair involvement in the activities of the Budget Review Board was brought to my attention for my consideration. I have concluded that the involvement of Standing Committee Chairs in the BRB’s review of the draft budgets, and whether or not they occur, is a matter of policy and therefore not within my jurisdiction.

I further conclude there is no evidence to substantiate claims that formal or informal, unreported meetings of Members of Council occurred leading up to Council’s budget deliberations on December 13, 2017 that were in violation of the open meeting provisions.

Finally, I was asked to consider and rule on the responsibility of City staff and the Mayor to share information during the budgetary process. I have concluded that the dissemination of budget information is also a matter of policy for Council to consider and not within my jurisdiction.

I have no recommendations for Council in this regard.

Report

While my investigation found no violations of the open meeting rules set out in the Municipal Act, 2001, there was considerable public discourse on this issue and the Request for Investigation was made public by one of the complainants.

I believe it is in the public interest that I file this report with City Council and provide guidance on the evolution of the open meeting rules as well as to elucidate my jurisdiction as Meetings Investigator.

No response is required by Council to this report.

Respectfully submitted,
Robert Marleau C.M.
Meeting Investigator

 

[1] Ombudsman of Ontario, Investigation into whether the Recreation Committee for the Town of Kirkland Lake violated the Municipal Act’s open meeting requirements (November 2017) at 21, online: < https://ombudsman.on.ca/resources/reports-and-case-summaries/municipal-meetings/2017/town-of-kirkland-lake>

[2] Ontario Ombudsman, Submission to the Standing Committee on Social Policy on Bill 68 Modernizing Ontario’s Municipal Legislation Act, 2017, at 6, online < https://www.ombudsman.on.ca/Files/sitemedia/Documents/Resources/Ombudsman-Bill68-EN-accessible.pdf