The Ombudsman investigated a special closed meeting held by the Grey Bruce Health Unit’s Board of Health on May 12, 2021, as well as a closed meeting held by the Board’s Executive Committee on May 10, 2021. At both meetings, legal advice was received from solicitors about a letter the Health Unit had received from a lawyer threatening litigation. The confidential legal advice received was about the appropriate steps to be taken in response to the letter, as well as litigation strategy. A third-party consultant was also present at both meetings. However, the Ombudsman found that the third-party consultant provided insights that supplemented, and were informed by, the legal advice given by the solicitors. The presence of the third-party consultant therefore did not constitute waiver of solicitor-client privilege. Accordingly, the discussions of the Board of Health and the Executive Committee fit within the exception for advice subject to solicitor-client privilege.
The Ombudsman reviewed a closed meeting held by council for the Township of the North Shore relying on the exception for advice subject to solicitor-client privilege to discuss a draft by-law prepared by the township’s external solicitor. A third-party consultant, who also served as the township’s Integrity Commissioner, attended the meeting and provided comments on the draft by-law. The Ombudsman found that the presence of the consultant did not constitute a waiver of privilege and that the discussion fit within the exception for solicitor-client privilege.
The Ombudsman reviewed the in camera session of the meeting of the Committee of the Whole for the Municipality of St.-Charles, in which documents and recommendations about the municipality’s finances were discussed. The council discussed a document containing a watermark indicating that it was “supplied in confidence” to the municipality by a consultant. The Ombudsman found the document summarized and analyzed information about the municipality, and was marked “in confidence” because it was created by a third party and given to the municipality. Section 239(2)(i) is intended to protect confidential information about a third party. Therefore, the discussion of this report marked “in confidence” did not fit within the information supplied in confidence exception.
When council for Wollaston Township discussed in camera the job performance of an individual employee, it fit within the exception for personal matters, as well as the exception for labour relations or employee negotiations. The same was true of council’s discussion about the past job performance of a prospective consultant.
The Ombudsman reviewed a closed meeting held by council for the Town of Pelham to discuss an external consultant’s report to council regarding municipal financial information. The consultant was retained by the municipality’s lawyers to review and interpret the financial information provided by the town. The Ombudsman found that the consultant acted as a translator, interpreting the financial information and explaining it to the lawyers to allow them to formulate legal advice. While in closed session, the town’s treasurer also presented information about the municipality’s financial status. In most cases, information provided to council by staff about a municipality’s finances would not fit within any of the exceptions to the open meeting rules and should be discussed in open session. However, the Ombudsman found this part of the discussion fit within the solicitor-client privilege exception because the information provided by the treasurer was provided to allow the lawyers to understand the financial information, in order to provide legal advice to the town. Therefore, the Ombudsman found that the discussion fit within the solicitor-client privilege exception.
Council for the Township of Alfred and Plantagenet participated in working sessions with a consultant with respect to a proposed organizational study. The Ombudsman reviewed the working sessions. A council member described these sessions as being confidential, akin to solicitor-client privilege. The Ombudsman found that the Municipal Act, 2001 does not contain any exceptions to protect confidential discussions with consultants who are not solicitors representing a municipality. As council did not receive advice from a solicitor during the working sessions, the solicitor-client privilege exception could not apply.
The Ombudsman reviewed a closed meeting held by council for the City of Hamilton to receive legal advice from the municipality’s solicitor regarding altering a contract with a consultant. The meeting was closed under the exception for solicitor-client privilege. The solicitor identified options for council with respect to the contract and risks associated with those options. The Ombudsman found that council’s discussion fit within the exception for solicitor-client privilege.