The Ombudsman received a complaint alleging that meetings of the Board of Directors of the Niagara Falls Hydro Holding Corporation are improperly closed to the public in contravention of the Municipal Act, 2001. The Ombudsman’s review found that the corporation is a municipally controlled corporation and not subject to the open meeting rules found in the Municipal Act, 2001. The Ombudsman also determined that the corporation has not violated its internal meeting rules in closing its Board meetings to the public.
The Ombudsman reviewed two meetings held by the City of Hamilton Farmers’ Market. The Ombudsman found that the Hamilton Farmer’s Market is a municipally controlled corporation. Its letters patent establish it as a not-for-profit corporation, without share capital. The City of Hamilton is the sole shareholder and voting member of the corporation. In addition, the City appoints the entire Board of Directors. Accordingly, the Ombudsman made suggestions under his general municipal jurisdiction to improve local governance of the Hamilton Farmers’ Market.
The Ombudsman reviewed meetings held by council for the Town of Grimsby in its capacity as a shareholder of Niagara Power Inc. that occurred without notice to the public. The municipality suggested council was entitled to meet in its capacity as shareholder of the corporation under the Business Corporations Act, and that the meetings were not subject to the open meeting rules. The Ombudsman found that the municipality is the majority shareholder of Niagara Power Inc., but that individual members of council are not shareholders. When the company holds a shareholders’ meeting, council is invited to attend in its capacity as the representative of the town. Accordingly, the Ombudsman found that the municipality must provide public notice of the meetings in accordance with the Municipal Act, 2001. The Ombudsman also provided best practice examples for conducting shareholder meetings for municipally controlled corporations from other municipalities.
The Ombudsman reviewed a meeting held by council for the Town of Grimsby held meetings in its capacity as a shareholder of Niagara Power Inc. The municipality suggested the Business Corporations Act permitted the meetings to be held in camera. The Ombudsman found that the Business Corporations Act sets out requirements for shareholders’ meetings, including with respect to notice and minute-taking. However, nothing in the Act explicitly permits these meetings to be closed to the public. Accordingly, the meetings did not fit within the exception for matters permissible to be closed under another act.
The Ombudsman reviewed a closed meeting held by council for the Town of Grimsby to discuss a municipally controlled corporation, Niagara Power Inc. The meeting was closed under the exception for security of the property. Council discussed whether to obtain a valuation of a municipally owned corporation. The Ombudsman found that the exception applies to discussions about protecting municipally owned corporeal and incorporeal property from loss or damage. The discussion about valuation did not fit within the exception for the security of the property of the municipality since there was no apparent threat to the municipally controlled corporation.
The Ombudsman reviewed a closed meeting held by council for the Town of Grimsby to discuss obtaining a business valuation of Niagara Power Inc., a municipally controlled corporation. Council also discussed the sensitive nature of obtaining a valuation. Although it did not rely on the acquisition or disposition of land exception, the municipality suggested it might apply to council’s discussion. The Ombudsman found that the acquisition or disposition of land exception would not apply to the discussion since there were no pending or proposed land deals discussed.
The Ombudsman reviewed a closed meeting held by council for the Town of Grimsby to discuss a municipally controlled corporation, relying on the litigation or potential litigation exception. During the closed session, council discussed a proposal to obtain a business valuation of the corporation. The municipality believed that the business valuation of the corporation was sensitive business information that should remain confidential. The discussion referenced an ongoing arbitration process involving the municipality, however the arbitration was not the focus of the discussion. The Ombudsman found that binding arbitration may be akin to litigation. However, the discussion did not fit within the litigation or potential litigation exception because there was no evidence that the discussion involved current or pending litigation.
The Ombudsman reviewed a closed meeting held by council for the Town of Grimsby to discuss a municipally controlled corporation, Niagara Power Inc. During the closed session, council discussed a proposal to obtain a business valuation of the corporation. Although it did not rely on the labour relations or employee negotiations exception, the municipality suggested it may apply to the discussion. Council did not discuss any specific information about employees or labour negotiations. The Ombudsman found that a discussion about the potential impact a valuation may have on the corporation’s employees does not fit within the labour relations or employee negotiations exception.
The Ombudsman reviewed a closed meeting held by council for the City of Oshawa to discuss a proposed merger between a municipally controlled corporation and another corporation. The council did not report back in open session following the closed meeting. The Ombudsman found that by not reporting back after the closed session, the municipality failed to provide members of the public who may have been present with a general idea of the closed session discussion. The Ombudsman recommended that council adopt the best practice of reporting back in open session.
The Ombudsman reviewed a closed meeting held by council for the City of Port Colborne to discuss disposing of its shares in a shared services provider. The meeting was closed under the security of the property exception. Council cited the exception because the municipality’s bargaining position might have been affected if details of the discussion were made public. The security of the property exception is narrowly construed. The Ombudsman found that the fact that any discussion in open session may have decreased the value of the shares was insufficient to bring the matter within the security of the property exception.
The Ombudsman reviewed a closed meeting held by council for the City of Port Colborne that relied on the exception for solicitor-client privilege to discuss a municipally controlled corporation. The municipality had received legal advice on the company in the past. The municipality’s legal counsel was not present during the discussion and there was no evidence to suggest that legal advice was discussed. The Ombudsman found that the fact that legal advice has been previously received on a subject does not mean that all future discussions of that subject will fall within the exception for solicitor-client privilege. Therefore, the discussion did not fit within the exception.