The Ombudsman investigated a closed meeting held by the London Transit Commission on February 28, 2024. The Commission relied on the exception for personal matters about an identifiable individual to discuss the merits of receiving training from the City of London’s integrity commissioner, and to explore options for recording its meetings. The Ombudsman found that the information discussed related specifically to scrutiny and opinions of named individuals and therefore qualified as personal information. The personal information was central to discussions about whether training was necessary, and about the merits of recording Commission meetings. The Ombudsman found that parsing the discussion between an open and closed session would have detracted from a free and uninterrupted discussion.
In certain limited cases, topics that on their own do not fit within a closed meeting exception may be discussed in camera.
The Ontario Divisional Court commented that in some cases it is not realistic to expect bodies to parse their meetings between open and closed sessions where it would “detract from free, open and uninterrupted discussion.”[1] The Ombudsman has applied this exception narrowly. If the in camera discussion could have been parsed between an open and closed meeting the exception does not apply.[2]
The Ombudsman has found that references to information that is incidental to the main topic of discussion does not render a meeting illegal.[3]
However, members should take care not to inadvertently disclose confidential information into otherwise public discussions. It is important for members to exercise discipline and control both individually and collectively to ensure that they limit discussion in closed session to matters clearly coming within statutory exceptions identified in the resolution.
[1] St. Catharines (City) v. IPCO, 2011 ONSC 2346 at para 42.
[2] Municipality of St.-Charles, February 4, 2016
[3] Township of Laird, January 24, 2017
The Ombudsman found that council for the Township of Lake of Bays could have parsed its closed session discussion about a potential complaint to the local Integrity Commissioner and Freedom of Information requests from a subsequent discussion about the Township’s road allowance purchase program.
239(2)(d) Labour relations or employee negotiations|239(2)(i) Information supplied in confidence by a third party|239(2)(k) Plans and instructions for negotiations|background information|bargaining position|commercial information|financial information|harm (established)|labour relations information|negotiation|negotiation (significant interference with)|negotiation (to be carried on)|Parse discussion|third-party information
The Ombudsman investigated a closed meeting held by council for the City of Kitchener to discuss the implementation of a centralized model for operations related to certain arts and entertainment facilities. The Ombudsman found that parts of the closed session discussion fit within the exceptions for:
- Information supplied in confidence by a third party at section 239(2)(i) of the Municipal Act, 2001;
- Labour relations and employee negotiations at section 239(2)(d) of the Act; and
- Plans and instructions for negotiations at section 239(2)(k) of the Act.
As the discussion could not have realistically been parsed, the entire discussion fit within those exceptions.
The Ombudsman investigated a closed meeting held by council for the Municipality of Markstay-Warren on December 11, 2023. The Ombudsman determined it was unreasonable for council to parse its examination of a proposal to sell two fire trucks and a proposal to consolidate the Municipality’s fire and public works departments from the rest of the closed session discussion, which fit within the exception for personal matters about an identifiable individual.
The Ombudsman investigated a closed meeting held by council for the Town of Cochrane on February 13, 2024. The Ombudsman found that council’s discussion regarding the integrity commissioner’s role, including discussion of their performance and suitability for the position, fit within the open meeting exception for personal matters about an identifiable individual. However, the Ombudsman found that council’s subsequent closed session discussion about the hiring process it would follow to find a new integrity commissioner did not fit within the exception, could have been parsed from the first part of the discussion, and should have been held in open session.
The Ombudsman found that only a portion of the closed session discussion held on July 5, 2023 by the Committee of the Whole for the United Counties of Leeds and Grenville regarding a fundraising update fit within the exception for personal matters about an identifiable individual. The Ombudsman determined that information about individual (but not corporate) donors and their wishes constituted personal matters about identifiable individuals, and that the portion of the discussion regarding internal communications that included individual donor information could not have been parsed further. Accordingly, this portion of the closed session discussion fit within the exception for personal matters. However, other portions of the Committee’s closed session discussion, in particular whether or not to discuss the fundraising update in closed session and changes to the public fundraising policy, only contained passing references to identifiable individuals and could have been held in open session. Accordingly, those portions did not fit within this exception or any other exception, and the Ombudsman concluded that the Committee contravened the Municipal Act, 2001.
The Ombudsman reviewed a complaint about a closed meeting held by the City of Hamilton’s Selection Committee for Agencies, Boards and Sub-Committees on October 24, 2023. The Ombudsman found that the Selection Committee’s discussion did not contravene the open meeting rules in the Municipal Act, 2001 because its discussion about changing the terms of reference for a particular committee could not have been parsed from the general discussion about the applicants for that committee.
The Ombudsman found that council for the Township of McGarry’s closed session discussion of the former mayor’s resignation, and discussions about specific potential appointees to fill the resulting vacancies on September 1, 2023, fit within the exception for personal matters. While the Ombudsman determined that the interspersed discussions about whether to fill the vacancies by appointment or through a by-election did not fit within any open meeting exceptions, parsing those parts of the meeting would have detracted from free, open, and uninterrupted discussion. Accordingly, council’s entire closed session discussion was permitted under the Municipal Act, 2001. The Ombudsman also noted that council may wish to consider how to structure similar conversations in the future to increase the openness and transparency of its decision-making.
The Ombudsman found that council for the Township of Springwater’s discussions regarding a rainbow crosswalk project and an employment matter related to the local public library fit within the exception for personal matters about an identifiable individual. A discussion concerning a completed hiring process for a staff position did not fit within the exception for labour relations and employee negotiations, but a portion did fit within the exception for personal matters. Since the remainder of that discussion could not be parsed, the Ombudsman determined that council did not contravene the Municipal Act, 2001 at its special council meeting.
The Ombudsman investigated a closed meeting held by council for the Municipality of Temagami on June 20, 2023. Council relied on the exception for personal matters about an identifiable individual to discuss funds being held by the municipality in relation to property it had sold. The Ombudsman found that part of this discussion fit within the exception, as council discussed tax information about an identifiable individual in relation to the sale of this property. The Ombudsman also found that although the first part of the discussion did not include personal information, it would not have been reasonable for council to have parsed its discussion.
Council for the City of Elliot Lake held a closed session discussion about the municipality’s organizational structure and potential reorganization. The closed session discussion took place in two parts. The Ombudsman found that the first part of the discussion, involving the municipality’s organizational chart, could have been parsed from the second part of the discussion about reorganization, and should have been held in open session.
The Ombudsman found that council for the Municipality of Arran-Elderslie could not have parsed information about a vacant staff position from its closed session discussion. The information was necessary to assess the municipality’s participation in a pilot project in a meaningful way.
The Ombudsman found that council for the Township of Nipissing contravened the Municipal Act, 2001 on July 13, 2021 when it discussed the Township’s hiring plan in camera. This discussion did not fall within any of the Act’s closed meeting exceptions, and could have been parsed from the rest of council’s in camera discussion. However, the Ombudsman found that the Township did not contravene the Municipal Act, 2001 during an in camera meeting on August 3, 2021. Although part of council’s discussion did not fit within any of the Act’s closed meeting exceptions, the Ombudsman found that an attempt to parse these discussions would have stifled free, open and uninterrupted discussion.
The Ombudsman investigated a closed meeting held by council for the Township of Lanark Highlands on December 7, 2021. Council proceeded in camera to discuss the performance of an individual in the context of their employment with the Township. Council also discussed the Township’s finances, which would typically occur in open session. However, the Ombudsman found that it would have been impractical for council to parse its discussion of the Township’s finances from its discussion about the performance of an employee. The Ombudsman found that council did not contravene the Municipal Act, 2001.
The Ombudsman reviewed a complaint that the Saugeen Municipal Airport Commission contravened the Municipal Act, 2001 when it went in camera during a meeting on September 27, 2021. The Ombudsman found that a discussion about negotiations with a client could be parsed from discussions about an agreement with municipalities and financial information.
Bruce County’s Executive Committee cited the exception for personal matters when it proceeded in camera on September 21, 2017, however, the Ombudsman found no indication that personal matters of an identifiable individual were discussed during this meeting. The Ombudsman also considered the applicability of the exception for personal matters with respect to a January 10, 2019 meeting. The Ombudsman found that the Committee’s in camera discussion relating to a new position for a specified individual fit within the exception. However, this matter could have been parsed from the rest of the Committee’s discussion, which did not fit within any of the closed meeting exceptions.
The Ombudsman reviewed a complaint that council for the Township of Leeds and the Thousand Islands contravened the Municipal Act, 2001 when it went in camera on August 11, 2020. Council’s in camera discussion pertained to a study report and a funding application, both related to an internet broadband project. The Ombudsman found that council’s discussion about the study report was permissible under the exception at s. 239(2)(j), information belonging to the municipality. However, the discussion about the study report was separate from the discussion relating to the funding application. Council contravened the Act by discussing the funding application in closed session and by holding a vote by consensus on this matter. Furthermore, prior to moving in camera, council failed to state in its resolution the general nature of the matter to be considered as required by s. 239(4).
The Ombudsman investigated two closed meetings held by council for the Township of McMurrich/Monteith on June 8 and July 6, 2021. The Ombudsman found that council did not contravene the Municipal Act, 2001 when it held a closed meeting on June 8, 2021 since part of the discussion fit under the exception for solicitor-client privilege and the rest of the discussion fit under the exception for plans or instructions for negotiations. The Ombudsman found that the delegation to council during the closed meeting on July 6, 2021 did not fit under any closed meeting exceptions while council’s subsequent discussion fit under the exception for litigation or potential litigation. Accordingly, the Ombudsman found that council contravened the Municipal Act, 2001 because it would have been possible for council to parse the delegation portion of the meeting from its subsequent discussion.
The Ombudsman reviewed a closed meeting held by council for the Township of South Frontenac on July 13, 2021 and found it was not possible for council to separate the confidential legal advice received during the meeting from the general information discussed about the Johnson Point Development. The topics were entwined in such a way that it would not have been realistic to expect council to parse them. To do so would have detracted from free and uninterrupted discussion.
The Ombudsman reviewed a closed meeting of council for the Town of Grimsby. During the meeting, council discussed personal information about the municipality’s integrity commissioner. Council also discussed the contract between the integrity commissioner and the municipality as part of its broader discussion. The Ombudsman found that the information about the contract could not have been parsed from the in camera discussion.
The Ombudsman investigated a closed session held by council for the Town of Plympton-Wyoming. The meeting was closed under the personal matters exception. The Ombudsman found that council’s discussion about the employment history and qualifications of two individuals interested in filling a council vacancy fit within the “personal matters” exception to the open meeting rules. However, council’s discussions about whether to fill the vacancy by holding a by-election or by appointment did not fit within the “personal matters” exception. The Ombudsman found that it would have been possible for council to parse the two discussions. Council could have discussed the method to fill the council vacancy in open session then proceed to closed session to discuss personal matters relating to the individuals interested in filling the council vacancy.
The Ombudsman reviewed a closed meeting held by council for the Municipality of Temagami to discuss the findings of an integrity commissioner investigation and harassment investigations. The meeting was closed under the solicitor-client advice exception. During the meeting the integrity commissioner and an investigator presented their findings to council. The Ombudsman found that this information was not provided by a lawyer and does not qualify as legal advice. However, the information supplied by the investigator and integrity commissioner was received in relation to council seeking legal guidance on how to respond to the investigations’ findings and was necessary to discuss the issues meaningfully. It would not be reasonable for council to parse its discussion. Therefore, the discussion fit within the solicitor-client advice exception.
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 chose to close this discussion under the personal matters exception because they anticipated discussions about the broader financial issues would lead to discussions about identifiable individuals, and believed council would not be able to separate the two discussions. The Ombudsman found discussions of individual staff fell within the personal matters exception, however, discussions of broader financial issues did not. The Ombudsman found that it would have been possible for council to parse the two discussions. Council could have proceeded from open into close as soon as broad discussions of the financial documents concluded and discussions of identifiable staff commenced.
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 and the conduct and performance of a previous employee. While in closed session the treasurer presented information to council about the municipality’s financial status. In most cases, this type of information would not fit within any of the exceptions to the open meeting rules and should be discussed in open session. However, in this case the Ombudsman found that the information provided by the treasurer was sufficiently necessary to fully explore the issues covered by the legal advice and therefore, appropriately discussed in closed session under the solicitor-client privilege exception.
The Ombudsman reviewed a closed meeting held by council for the City of Elliot Lake to discuss a motion to rescind a previous resolution regarding the recruitment of a chief administrative officer (CAO). The meeting was closed under the personal matters exception. During the closed session council discussed several individuals in the context of their employment, however, the discussion also included information about these employees that went beyond their professional roles. Council also discussed the desired qualities of a CAO. The Ombudsman found that while normally, general discussion of the qualities of a CAO would not fall within the personal matters exception, in this case it would not be reasonable for council to parse its discussion. Therefore, the discussion fit within the personal matters exception.
The Ombudsman reviewed a closed meeting held by council for the City of Timmins to discuss a proposed land transaction with a local post-secondary institution. The meeting was closed under the acquisition or disposition of land exception. During the meeting, a representative from the post-secondary institution was present and provided information to council about the proposed land transaction.
The Ombudsman noted that if the other party to the transaction is present during the in camera discussion, the protection offered by the exception is eliminated. The Ombudsman also found that the portion of the closed meeting during which the representative was present could have been parsed from the remainder of the discussion. Therefore, the Ombudsman found that the discussion did not fit within the acquisition or disposition of land exception.
The Ombudsman reviewed a closed meeting held by the Laird Fairgrounds Management Board to discuss an incident at a horse arena that involved township employees, members of the board, and members of the public. The meeting was closed under the personal matters exception. The board’s discussion identified individuals by name and referred to allegations about conduct outside the scope of the individuals’ official roles. The Ombudsman found that the board referenced information in camera that had been discussed during the open portion of the meeting, but this was incidental to the main discussion, which focused on personal information.
The Ombudsman reviewed a closed meeting held by council for the Township of Leeds and the Thousand Islands to discuss the assignment of the Chief Administrative Officer’s (CAO) duties. The meeting was closed under the personal matters exception. The discussion focused on the specific skills and work experience of identified employees who were being considered for the interim CAO role. There was a brief mention of the CAO hiring process which was incidental to the main discussion. The Ombudsman found that the meeting fit within the personal matters exception because council discussed the qualification of identifiable individuals. The Ombudsman found that general consideration of the CAO hiring process would not have fit within this exception, however any such discussions were brief and incidental to the main discussion.
The Ombudsman reviewed a closed meeting held by council for the City of Sault Ste. Marie to discuss a proposed plan to realign fire services and EMS. The meeting was closed under the labour relations or employee negotiations exception. During the closed session, the fire chief gave a presentation to council that covered the effect of the realignment on the local union, as well as a number of other repercussions. The Ombudsman found that the portion of council’s discussion about the local firefighters’ union fit within the labour relations or employee negotiations exception. The Ombudsman found that other topics covered in the presentation, such as risk management, effect on service levels, and financial savings generally do not fit within the labour relations or employee negotiations exception. However, the Ombudsman found that those topics were not discrete and were included to inform council’s discussion about labour relations and were not required to be parsed from the discussion. Therefore, council’s discussion fit within the labour relations or employee negotiations exception.
The Ombudsman reviewed a closed meeting held by council for the City of Sault Ste. Marie to discuss a proposed plan to realign fire services and EMS. The meeting was closed under the labour relations and employee negotiations exception. During the closed session, the fire chief gave a presentation to council that covered the effects of the realignment on the local union, and a number of other repercussions. The Ombudsman found that the portion of council’s discussion about the local firefighters’ union fit within the labour relations or employee negotiations exception. The Ombudsman found that other topics covered in the presentation, such as risk management, effects on service levels, and financial savings generally do not fit within the labour relations or employee negotiations exception. However, the Ombudsman found that those topics were not discrete and were included to inform council’s discussion about labour relations, and were not required to be parsed from the discussion. Therefore, council’s discussion fit within the labour relations or employee negotiations exception.
The Ombudsman reviewed a closed meeting held by council for the Municipality of St.-Charles to discuss audit reports and individual staff performance. The meeting was closed under the personal matters exception. The Ombudsman found that the audit reports contained municipal financial information and its findings did not reveal personal information about staff members. The fact that the municipality has a small staff and personal information about individual employees could be inferred from the auditor’s findings does not bring the discussion within the personal matters exception. The Ombudsman found that council’s discussion about individual employee conduct and performance did fit within the personal matters exception because staff members were identified by name. The Ombudsman found that council could have been parsed and the audit report could have been considered in open session, separate from the employee performance matters, because the two topics were distinct.
The Ombudsman reviewed a closed meeting held by the Economic Development Committee for the Township of McKellar to discuss comments about the committee made by two councillors and two members of the public. The meeting was closed under the personal matters exception. The committee’s discussion focused on the conduct and comments of the councillors, the two members of the public, and ways the committee could respond to that conduct.
The Ombudsman found that the discussion about the conduct of the two members of the public fit within the personal matters exception. Normally, the discussion about the conduct of the two councillors would not fit within the exception, as it related to the individuals’ conduct in their official roles as councillors. However, the Ombudsman found that it is unrealistic to expect the committee to have parsed the discussion about the members of the public from that of the councillors when the two discussion topics were directly related.
The Ombudsman reviewed a closed meeting held by council for the Town of Amherstburg to discuss an external investigator’s report into health and safety concerns raised by municipal employees. The meeting was closed under the personal matters exception. Council discussed the conduct of a staff member and how to address the issues raised in the report. During the discussion, the external investigator provided general information about health and safety requirements, interspersed with comments about specific individual employees. The Ombudsman found that it was unrealistic to expect council to parse this portion of the discussion to exclude references to related or background information. The Ombudsman found that the discussion fit within the personal matters exception.
The Ombudsman reviewed a closed meeting held by council for the City of Elliot Lake to discuss the mayor’s conduct and the roles and responsibilities of the mayor. The meeting was closed under the personal matters exception. The Ombudsman found that a discussion of a committee or council member may qualify as personal where it involves the evaluation of a person’s conduct or performance. The Ombudsman found that although parts of council’s discussion qualified as personal information, council’s discussion about the mayor’s official conduct was not covered by the personal matters exception. However, the Ombudsman found that parsing the closed meeting discussion would not be realistic, given the connection between the parts of the discussion that did not fall within the exception and those that did.
The Ombudsman reviewed a closed meeting held by council for the Town of Fort Erie to discuss a proposal for the municipality to purchase vacant industrial land. The meeting was closed under the acquisition or disposition of land exception. Council also discussed a grant for a local racetrack to continue to operate. The grant and the proposed purchase of the vacant industrial land were related as the land deal could not proceed if the racetrack was not operational. Representatives from the racetrack were present during the closed session to address questions from council. The grant is not a matter that would normally fit within the cited exception. However, the Ombudsman found that the discussion about the proposed acquisition of land was directly related to the grant for the racetrack and it would not have been feasible to parse the discussion. Therefore the discussion fit within the acquisition or disposition of land exception.
The Ombudsman reviewed a closed meeting held by council for the Town of Amherstburg to discuss an organizational review of the municipality’s staff. The meeting was closed under the labour relations and employee negotiations exception. During the closed session meeting, a consultant presented a report to council on the roles and responsibilities of staff members and information on how the findings would affect both unionized and non-unionized staff. The Ombudsman found that council’s discussion fit within the cited exception. General discussions regarding a municipal organization chart and various staff positions would not fit within the labour relations and employee negotiations exception. However, the Ombudsman found in this case that the information was for background and context for the labour relations discussions.
The Ombudsman reviewed a closed meeting held by council for the Municipality of Morris-Turnberry to discuss a confidential report about fire services. The meeting was closed under the acquisition or disposition of land exception. The report included information about a potential land acquisition, including the proposed offer price for the land. The report also included information about an overall cost analysis and comparison of fire service options. The Ombudsman found that normally that type of information would not fit within the exception, however the information was presented as background to inform council’s decision on the land acquisition. Therefore, the discussion fit within the acquisition or disposition of land exception.