Read the Ombudsman's third annual report on the work of our Open Meeting Law Enforcement Team (OMLET), which is solely devoted to upholding Ontario’s municipal open meeting law, also known as the Sunshine Law.
Through the Open Meeting Law Enforcement Team (OMLET), the Ontario Ombudsman investigates complaints about closed municipal meetings in Ontario under the Municipal Act, 2001. Anyone can make a complaint. Here are the steps we follow to triage and investigate complaints in municipalities where the Ombudsman is the closed meeting investigator.
Upon receipt of a complaint, OMLET staff contact the Clerk of the relevant municipality to explain our process, obtain documents relating to the meeting(s) in question (e.g., notice of meeting, agenda, minutes) and gather information relevant to the complaint.
If an investigation appears warranted, OMLET staff notify the municipality.
OMLET staff gather relevant evidence, including interviewing witnesses (by phone, Skype or in person) and reviewing more documents as warranted.
Based on the evidence, the Ombudsman makes findings (including whether an illegal meeting occurred and/or procedures were violated), and makes recommendations, including best practices.
The Ombudsman’s preliminary findings are shared with municipal officials and they are given a chance to respond.
The Ombudsman’s report is finalized and sent to the municipality, which is expected to make the report public as soon as possible. The Ombudsman then makes the report public on his Office’s website (www.ombudsman.on.ca), and might comment publicly on the case. Complainants are also informed of the outcome.
Two-thirds of complaints are resolved in less than a month.
As of August 31, 2014, the Ombudsman is the closed meeting investigator for 196 of Ontario’s 444 municipalities, up from 191 in the previous year.
This report covers the period from September 1, 2013 to August 31, 2014. During this time, the Open Meeting Law Enforcement Team (OMLET) received 149 complaints and inquiries about municipal meetings. Of those, 89 were about municipalities where the Ombudsman is the investigator; the rest were from municipalities that had appointed someone else, and were referred accordingly. At times, staff from our Office’s Special Ombudsman Response Team, which handles major systemic investigations, assisted OMLET with field investigations.
The cases we reviewed related to 42 different municipalities and local boards. More than two-thirds of (68%), were resolved in less than a month.
The chart on page 42 lists the outcomes of these cases, including where we found illegal meetings and/or procedural violations, and/or recommended best practices. Of the 49 meetings reviewed, the Ombudsman found 11 were illegal. He and OMLET staff also found 13 procedural violations and made 31 best practice recommendations.
We define these terms as follows:
A closed formal or informal gathering of a municipal council, committee or local board, where:
• members come together for the purpose of exercising the power or authority of the council, committee or local board, OR
• for the purpose of doing the groundwork necessary to exercise that power or authority; AND
• the subject matter being discussed is not permitted under an exception listed under section 239(2), 239(3) or 239(3.1) of the Municipal Act.
When a council, committee or local board violates any of the procedural requirements for closing a meeting, as defined under various provisions of the Municipal Act, including:
• procedural by-law is improper or lacking;
• improper exception cited to close the meeting;
• no resolution made to close the meeting, or resolution fails to include the general nature of the topic to be considered;
• improper voting in closed session on a matter of substance;
• advance notice to the public is not given or is insufficient;
• records are not kept, or are improper;
• the applicable procedural by-law is not followed;
• the open meeting requirements generally are not followed.
A measure that the Ombudsman recommends to municipalities to improve overall transparency and accountability in their meeting practices, even if they have not violated the Municipal Act per se. Typically, the Ombudsman recommends that they:
• improve the information they give in public meeting notices, agenda contents or resolutions, to provide more details about the items discussed in closed sessions;
• avoid last-minute additions to the agenda;
• keep better records, including by making and properly storing audio and video recordings of closed sessions;
• report back in open session.
The full reports and/or closing letters from all of these cases are available on our website, www.ombudsman.on.ca (see the Communications and Outreach section of this report for more information). Selected cases from this past year are also highlighted in the “Case Summaries” section of this report.
We also analyze cases for recurring trends and errors, in order to target our efforts to educate municipalities and the public about the Sunshine Law requirements and best practices. Most violations and errors by municipal officials involve a misunderstanding or misinterpretation of the exceptions set out in the Municipal Act that can be cited in order to close a meeting legally. What follows is our summary of the most common problems arising from this year’s crop of cases.
The Municipal Act, 2001 requires all meetings of councils, committees and local boards to hold open meetings. There are nine narrow, limited exceptions to this, listed in sections 239(2), 239(3) and 239(3.1).
Municipal officials may consider the following subjects behind closed doors (although closing the meeting is not mandatory):
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; and
8. Education and training of the members of the council, local board or committee (as long as no member discusses or otherwise deals with any matter in a way that materially advances the business or decision-making).
And they must consider the following topic in a closed meeting:
9. A request under the Municipal Freedom of Information and Protection of Privacy Act.
As the Ombudsman frequently points out, the first eight exceptions should be interpreted narrowly: When in doubt, a meeting should be open, not closed. The most common error municipal officials make is in misapplying these exceptions, usually by citing the wrong ones or interpreting them too broadly.
Based on the complaints we have investigated, the “personal matters about an identifiable individual” exception continues to be the most misunderstood and misapplied exception to the open meeting law.
This past year, the Township of Russell and the City of Owen Sound both misused this exception to cloak discussions in which individuals were referred to in their professional – not “personal” – capacity. The Town of Midland also wrongly considered reimbursement of legal expenses for a municipal official behind closed doors under this exception. But the most remarkable misuse of the exception occurred when the Township of Billings cited it to justify flipping a coin behind closed doors to decide who would fill a vacancy on council.
In contrast, we did find some municipalities that got it right when using this exception. The City of Timmins cited it correctly to discuss an investigation of a resident’s by-law infraction. The Town of Amherstberg also properly applied this exception and the one relating to “labour relations and employee negotiations” to meet behind closed doors to discuss reorganization plans that affected individual staff members.
Our past two OMLET annual reports have noted that the “litigation or potential litigation” and “solicitor-client privilege” exceptions were frequently and increasingly applied in error to close meetings that should be open to the public. The first is meant to apply when municipalities are actually involved in or threatened with litigation, including administrative proceedings before tribunals such as the Ontario Municipal Board. The second permits municipalities to request and obtain legal advice in confidence.
This year, the trend reversed – in fact, we saw marked improvement in the use of the “litigation” exception. Although there were still complaints about how councils used it, in most of those cases we found they did so correctly. For example, council for the Township of Larder Lake properly closed a meeting to consider legal correspondence about a building permit infraction in closed session, and the Township of Ashfield-Colborne-Wawanosh and City of Timmins councils were both justified in citing the exception to allow closed-door discussion of whether to pursue legal claims for financial relief.
However, councils for the Township of Ryerson and the Town of Orangeville defeated the purpose of the exception entirely when they barred the public from meetings by invoking the “litigation” exception, but invited the opposing parties in the litigation to participate in the closed sessions.
We also found fewer cases in which the “solicitor-client privilege” exception was misused. In one, the Town of Ajax’s General Government Committee cited it improperly to hold a closed session on a report on disposition of municipal land – even though it involved no legal advice and or privileged information. Similarly, the Township of Ryerson wrongly relied on this exception when discussing a solicitor’s letter that contained comments directed at a third party, not advice to the municipality.
Both the Town of Fort Erie and the Municipality of Bluewater used the “litigation” and “solicitor-client privilege” exceptions appropriately to obtain legal advice; the former to deal with a land sale and appeal before a tribunal, and the latter for a proposed by-law to resolve pending litigation.
While several municipalities demonstrated better understanding of the Municipal Act exceptions this past year, a few disregarded them entirely – closing meetings without any justification. This often occurred when meetings took place with other organizations, outside of regularly scheduled council gatherings. For example, a meeting of a quorum of members of the City of Elliot Lake council at the economic development office of the Serpent River First Nation violated the Act. So did a private meeting by members of the Township of Adelaide Metcalfe council with a wind energy company. We also found that the Municipality of Killarney’s Ad Hoc Committee met illegally multiple times over the course of three months in 2013.
Council, local board, and committee members are responsible individually and collectively for observing the Sunshine Law requirements. Although they are of course free to socialize together, they should always be alert to the potential for breaching the Municipal Act whenever they gather to discuss city business, whether or not they are in council chambers.
One thorny issue we tackled this year was whether certain municipal corporations are “local boards” subject to the open meeting rules. Although there is a regulation under the Municipal Act providing that municipal services corporations are not local boards (O.Reg 599/06), it does not actually apply to all municipal corporations. For instance, we found that the corporation known as the Niagara Central Airport Commission had been holding closed meetings illegally – under the mistaken belief that it was exempt from the Sunshine Law. But we found that closed meetings by another corporation, the board of the White Mountain Academy in the City of Elliot Lake, were fine, because it wasn’t a “local board.”
The determination of whether any given corporation is subject to the Sunshine Law is technical and depends on its date of incorporation and factors applied by the courts in defining “local boards,” as follows:
• Corporations established after January 23, 2007, when the latest regulations governing municipal services corporations came into effect, may be excluded from the definition of local board and excused from holding open meetings – depending on their purpose and whether they were established in accordance with regulatory requirements (O.Reg 599/06).
• Corporations created between May 2003 and January 2007 may be exempt based on earlier regulatory requirements (O.Reg. 168/03).
• Older corporations, established before regulatory exclusion existed, are considered local boards subject to the Sunshine Law if they display the following “four factors”:
1. They are carrying on the “affairs of the municipality”; and there is:
2. A direct link with the municipality (either by way of legislation or authority from the municipality);
3. A connection to or control by the municipality; and
4. An element of autonomy.
• Corporations created after May 1, 2003 that do not qualify for exemption under regulatory requirements are also required to obey the Sunshine Law if they meet the four-factor test.
Ministry of Municipal Affairs and Housing officials confirmed to us that the regulatory provisions were not enacted with the open meeting requirements in mind. Under the circumstances, it is understandable that some municipal corporations have been caught unwittingly violating the Municipal Act. Regulatory amendment in this area would ease confusion and ensure the Sunshine Law is applied consistently to these entities.
The Municipal Act, 2001 requires all municipalities and local boards to enact a procedure by-law governing the calling, place and proceedings of meetings (section 238(2)). The by-law must provide for public notice of meetings (section 238(2.1)). When a municipality fails to comply with these requirements, the Ombudsman reports this as a procedural violation. He may also recommend that a by-law be revised to reflect best practices.
For example, it was recommended that the Town of Larder Lake update its procedure by-law to reflect that council committees must observe the open meeting requirements and to provide for public notice of special meetings. Our Office also counselled the Municipality of Bluewater, Town of Carleton Place, City of Owen Sound and the Township of Brudenell, Lyndoch & Raglan to amend their by-laws to add reference to public notice of special meetings. We also advised the Township of Billings to change its by-law to reflect that most of the exceptions to the open meeting requirements are discretionary, not mandatory.
In order to promote the Sunshine Law and encourage consistent observation of its principles across the province, the Ombudsman and OMLET often recommend best practices to municipalities, whether or not they are found to have violated the Municipal Act. Again this year, our most common recommendations included making digital records of meetings and providing the public with as much information about closed sessions as possible, whenever possible.
The Ombudsman has always recommended that municipalities provide the public with advance notice of all items to be considered in closed session. Occasionally urgent matters arise that make it impossible or impractical to give public notice of a meeting. However, we found several municipalities overused the “emergency” excuse.
For example, the Ombudsman found that the Township of Adelaide Metcalfe should have provided public notice before going into closed session to address staff concerns about a councillor’s conduct. Adopting an interpretation used by the courts, we proposed defining “emergency” as “a serious, unexpected and potentially dangerous situation requiring immediate action.” However, we found the Town of Amherstburg was justified in calling an urgent closed meeting on short notice to discuss its reorganization plans, after rumours of terminations began circulating amongst municipal staff.
Clear and accurate recording of closed meetings helps ensure that closed meetings deal only with the narrow topics covered by the Municipal Act exceptions. However, the quality of records kept by municipal councils continues to vary widely from municipality to municipality. The Ombudsman has called on municipalities to make audio or video recordings of all meetings, open and closed. This past year, we recommended this as a best practice to the Towns of Larder Lake and Fort Erie, the Municipality of Markstay-Warren, the Township of Russell and, for the second time, to the Town of Mattawa and City of London.
Meanwhile, the ranks of municipalities that have already adopted this practice continue to grow. In the past year, the Municipality of Brighton, the Towns of Midland and Welland and the Townships of Adelaide Metcalfe, Brudenell, Lyndoch & Raglan and McMurrich-Monteith all began doing so.
In the past year, there has been a groundswell of support for increased municipal oversight. Members of the public, journalists, municipal officials and council members have spoken out – often in the news media and social media – for greater accountability for municipalities. On Facebook and Twitter, the Ombudsman answered hundreds of thoughtful questions about his investigations, the open meeting rules, and the breadth of Bill 8 – the Public Sector and MPP Accountability and Transparency Act, often using the hashtag #Bill8.
The Ombudsman and OMLET staff also fielded questions about the Sunshine Law via social media, phone, and in person. On July 21, 2014 the Ombudsman spoke to council for the Town of Brighton about his closed meeting investigations and the proposed expansion of our Office’s mandate. He addressed how Ombudsman investigations work, the timeline for the average OMLET investigation, and the importance of recording council meetings. Video of this presentation – and several past presentations (including to London, Sudbury, Midland, and Elliot Lake) – is available on our Office’s YouTube channel (www.youtube.com/OntarioOmbudsman).
Our second OMLET Annual Report, released in December 2013, generated significant interest from the public and from local media (reaching an aggregate audience of 1.2 million people, according to Infomart). The video of the Ombudsman’s press conference has been viewed close to 1,000 times. On
the day of the report release, we also held a chat on ScribbleLive with members of the Ombudsman’s senior team, and invited Maddie Di Muccio (then a Newmarket councillor) and Sarnia Mayor Mike Bradley to join the discussion. The chat, which had a total engagement time of almost 30,000 minutes, is archived on our website.
Our Office also works to educate the public and municipal leaders about the Sunshine Law in all municipalities, not just the ones where we are the investigator. We will once again distribute some 10,000 copies of our pocket-sized Sunshine Law Handbook – which includes tips for council members on best practices for open meetings, based on our experience since 2008 – to every council member who was elected or re-elected in the October 2014 elections, as well as their respective municipal clerks. The handbook is also publicly available on our website, and hard copies can also be requested.
Our website has a special section for Municipal Investigations, including our reports. It also includes the only database in Ontario – to our knowledge – that allows citizens to determine where to complain about a closed meeting. Our Find Your Municipality database lists every municipality and whether its investigator is the Ombudsman, LAS, or another contractor hired by the municipality. For those that use the Ombudsman as investigator, it also includes the results of all our recent investigations under the municipality’s name, to make them easy to find in one place.
The township called an emergency meeting without advance public notice on April 16, 2014 to discuss the conduct of a council member who had been critical of staff. The Ombudsman rejected the township’s use of its emergency meeting provision to hold this discussion, observing that the courts have defined “emergency” as a “serious, unexpected and potentially dangerous situation requiring immediate action.” He found that staff concerns about the councillor did not rise to the level of an emergency or excuse the township’s failure to follow the regular rules of public notice.
Our Office reviewed a complaint that the town’s May 23, 2013 general government committee meeting was improperly closed under two exceptions, since council considered the same issue publicly later that day. The Ombudsman found that the committee properly applied the “acquisition or disposition of land” exception when it discussed a staff report about selling or leasing a road allowance in closed session. He also noted that subsequent open discussion of the same issue by town council did not affect the propriety of the committee’s closed session. However, he concluded that the “solicitor-client privilege” exception was inapplicable, as the staff report did not contain any communications from the solicitor or reflect legal advice.
The town was in the midst of an organizational restructuring when rumours began circulating that there were going to be widespread staff terminations. Concerned that the news would become public, the chief administrative officer wanted to expedite the reorganization and brief council as soon as possible. The Ombudsman found that the council was justified in holding an emergency closed meeting on October 21, 2013, under the “personal matters” and “labour relations and employee negotiations” exceptions.
In his report Let’s Flip For It, the Ombudsman found that a closed session in July 2014 – in which council tossed a coin to choose a new councillor – was an illegal closed meeting under the Municipal Act, held to conduct a secret, illegal vote.
The Ombudsman also investigated a complaint that the Waterfront Improvement Committee was breaching the open meeting requirements. While the committee doesn’t have sufficient council or local board members to constitute a committee under the Municipal Act, it is a committee under the township’s procedure by-law. It already provides public notice of meetings and holds open meetings, and we encouraged it to formalize this process to avoid any confusion in the future.
The Ombudsman concluded that a portion of an August 27, 2013 special meeting to discuss a by-law to address building fees for wind turbines was properly closed under the “litigation or potential litigation” and “advice subject to solicitor-client privilege” exceptions. During the meeting, the municipality’s solicitor gave advice about the proposed by-law, the resolution of a dispute with various wind turbine companies, and the steps the municipality needed to take to avoid a lawsuit. While the meeting wasn’t illegal, the Ombudsman recommended that council improve its practices for informing the public about special meetings.
Although the township was the subject of 13 complaints to our Office – while it was in the midst of a labour dispute – OMLET and the Ombudsman did not identify any problems with the council’s closed meeting practices. Some of the complaints also raised concerns relating to municipal labour relations matters, which, as our staff explained to the complainants, are outside of the Ombudsman’s jurisdiction.
The Ombudsman concluded that the township council was authorized under the “education and training” exception to meet in closed session on March 19, 2014, to listen to a presentation by the Office of the Fire Marshal on how the Fire Prevention and Protection Act affects fire service delivery. However, the Ombudsman reminded council that the exception is discretionary and does not require such sessions to be held behind closed doors. He also found that council later applied the “personal matters” exception appropriately at the same meeting when it closed the doors to discuss concerns about a former employee.
A council meeting on March 31, 2014 was closed under the “acquisition of land” exception, to discuss a proposal to purchase vacant industrial land. During the session, council also considered the purchase price for related vacant lands and met with representatives from a racing consortium who needed additional town funding for a racetrack. While the topic of the financial sustainability of a racetrack would not normally qualify for closed-door discussion, the Ombudsman found that in this instance it was justified, as it was closely connected to and difficult to separate from the land purchase proposal.
Two councillors complained to the Ombudsman about a gathering of 12 council members in the city hall cafeteria, between meetings on June 24, 2014. Unlike in previous cases involving the same council (e.g., the 2013 backroom meeting of seven council members at a local eatery), the Ombudsman found that this gathering was not illegal. He stressed that council members are entitled to socialize and even engage in individual discussions relating to council business. The evidence gathered in our investigation – through interviews of all those present, including independent witnesses – did not support that the various conversations during dinner about a vacant council seat constituted a “meeting.” However, the Ombudsman did question the motivation of the councillors in lodging the complaints during the municipal election campaign, and cautioned that the Sunshine Law “was not intended as a tool to serve the oblique purposes of those involved in municipal politics.”
The Ombudsman found that town council misused the “personal matters” exception on July 22, 2013, when it went behind closed doors to consider the deputy mayor’s request for reimbursement of legal fees. The fees were incurred in connection with a complaint to the Ontario Civilian Police Commission that the deputy mayor had improperly leaked information about the local police services board. The Ombudsman noted the situation had been discussed in the media and related to conduct in the deputy mayor’s official capacity, not anything of a personal nature.
We received a complaint that the commission was violating the open meeting rules on the grounds that it did not consider itself a “local board.” The commission was initially created through municipal agreement and later continued under provincial legislation. It operates an airport for the benefit of four municipalities, which appoint its members and approve its funding. The Ombudsman found the commission was carrying on the affairs of the municipalities and was directly linked and connected to them, while maintaining a degree of autonomy. Applying principles developed by the courts, he concluded that the commission was a “local board” and thus required to hold open meetings, in compliance with the Sunshine Law.
In May 2014, we received a complaint about a closed session held by city council more than three years earlier – on March 23, 2011 – to discuss withdrawing a funding pledge to a local hospital for the purchase of an MRI machine. The Ombudsman concluded that the meeting was illegal because council wrongly applied the “personal matters” exception to shield disclosure of the name of an individual who was acting in a professional capacity. The Ombudsman also found that council improperly discussed the MRI funding and voted illegally behind closed doors.
A complaint was lodged with our Office about a May 15, 2014 closed meeting where several municipal infrastructure projects were discussed under three different exceptions. The Ombudsman found that consideration of the town’s financial interests, municipal growth, future planning and negotiation strategy did not fit the “security of the property” exception, as they did not relate to any loss or damage prevention measures or protection of public safety. He also said the town was wrong to use the “personal matters” exception to discuss contractors, acting in their professional capacity, behind closed doors. The only authorized closed-door discussion took place under the “acquisition or disposition of land” exception, relating to acquiring an easement interest over private property. The bulk of the closed-door discussion violated the Municipal Act.
A complainant contacted the Ombudsman concerned that city council met illegally on September 25, 2013, to discuss litigation related to a wastewater treatment plant upgrade. During the meeting, the city’s engineering staff briefed council on the plant upgrade, and based on this information, council considered taking legal action against a specific party connected with the project. The Ombudsman concluded that council’s contemplation of litigation came within the “litigation or potential litigation” exception and the meeting was closed properly.