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

• Budget Review Board (April 2018)
• Meeting of the Election Compliance Audit Committee held on April 18, 2011
• Meeting of the Transit Committee of April 21, 2010 and the Council meeting of May 26, 2010: General Accounts Write-Offs 2009
• Meeting of the Corporate Services and Economic Development Committee held on August 31, 2009 and the Council Meeting held on September 9, 2009
• Meeting of Ottawa City Council held on June 24, 2009
• Meetings of Ottawa City Council held on March 11 and March 15, 2009
• Meeting of Ottawa City Council held on January 28, 2009
• Meetings of Ottawa City Council held on December 19, 2008, January 6, 2009 and January 14/15, 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

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. 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. 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. 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

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