Municipality of Markstay-Warren - December 10, 2024

Investigation into meetings held by council for the Municipality of Markstay-Warren on November 20 and December 11, 2023

Paul Dubé
Ombudsman of Ontario

December 2024

Complaint

1    My Office received two complaints that council for the Municipality of Markstay-Warren (the “Municipality”) held closed meetings on November 20 and December 11, 2023 that did not fit within the cited open meeting exceptions in the Municipal Act, 2001[1] (the “Act”). The complaints also alleged that council did not provide sufficient information about the topics to be discussed in its resolutions to proceed into each closed session.

2    My investigation determined that the closed session discussions at both meetings fit within the exception for personal matters about an identifiable individual.

3    However, my investigation also determined that the Municipality contravened the Act in failing to state by resolution the general nature of the subject matter to be discussed in its closed sessions on November 20 and December 11, 2023.

Ombudsman jurisdiction

4    Under the Act, all meetings of council, local boards, and committees of either must be open to the public, unless they fall within prescribed exceptions.

5    As of January 1, 2008, the Act gives anyone the right to request an investigation into whether a municipality or local board has complied with the Act in closing a meeting to the public. The Act designates the Ombudsman as the default investigator for municipalities that have not appointed their own.

6    The Ombudsman is the closed meeting investigator for the Municipality of Markstay-Warren.

7    When investigating closed meeting complaints, we consider whether the open meeting requirements in the Act and the municipality’s procedure by-law have been observed.

8    Our Office has investigated hundreds of closed meetings since 2008. To assist municipal councils, staff, and the public, we have developed an online digest of open meeting cases. This searchable repository was created to provide easy access to the Ombudsman’s decisions on, and interpretations of, the open meeting rules. Council members and staff can consult the digest to inform their discussions and decisions on whether certain matters can or should be discussed in closed session, as well as issues related to open meeting procedures. Summaries of the Ombudsman’s previous decisions can be found in the digest: www.ombudsman.on.ca/digest.

9    The Ontario Ombudsman also has the authority to conduct impartial reviews and investigations of hundreds of public sector bodies. This includes municipalities, local boards, and municipally-controlled corporations, as well as provincial government organizations, publicly funded universities, and school boards. In addition, the Ombudsman’s mandate includes reviewing complaints about the services provided by children’s aid societies and residential licensees, and the provision of French language services under the French Language Services Act. Read more about the bodies within our jurisdiction here: www.ombudsman.on.ca/have-a-complaint/who-we-oversee.

Investigative process

10    My Office notified the Municipality of our intent to investigate these complaints on March 19, 2024. We spoke with the Mayor, the Clerk, and the councillors who attended the meetings, except for one who was no longer a councillor at the time of our investigation. We reviewed the Municipality’s meeting agendas, open and closed meeting minutes, and related material for both meetings.

11    My Office received full co-operation in this matter.

November 20, 2023 council meeting

12    Council met on November 20, 2023 at 7:00 p.m. for a regular meeting. During the public enquiries portion of the meeting, an individual raised concerns related to their time as a volunteer firefighter and a recent banquet for volunteer firefighters.  

13    Several other unrelated topics were also discussed in open session before council resolved to move into closed session at 8:35 p.m. Council did not provide any information about the topic to be discussed before moving to closed session, and the minutes do not indicate which open meeting exception council relied on.

14    The Clerk told our Office that the closed session was impromptu, and council relied on the exception for personal matters about an identifiable individual to discuss the issue raised in open session regarding the banquet for volunteer firefighters.

15    In closed session, council discussed how it could assist with this issue. Council discussed in detail the circumstances of the individual who raised the issue, including personal information that was not raised in open session. In its discussion, council also talked about the conduct of a relevant municipal employee.

16    Following the discussion, it was determined that the Clerk would draft an email to the individual to try to further assist. Council returned to open session and adjourned the meeting.

Analysis

Exception for personal matters about an identifiable individual, s. 239(2)(b)

17    Council relied on the exception for personal matters about an identifiable individual to discuss concerns related to a banquet for volunteer firefighters in closed session.

18    This exception applies to discussions that reveal personal information about an identifiable individual. To qualify as personal information, my Office has determined that it must be reasonable to expect that an individual could be identified if the information were disclosed publicly.[2] The information must also qualify as personal; that is, not as professional information or information in a business capacity.[3] However, information may qualify as personal if it involves scrutiny or opinions of an individual’s conduct.[4] My Office has found that information that has already been publicly discussed or is generally known to the public does not come within the exception for personal matters.[5]

19    In this case, council discussed two individuals by name in response to issues raised about the banquet during the open portion of the meeting. Because these individuals were identified by name, they would be identifiable to the public had the discussion taken place in open session.

20    Council’s closed session discussion included personal information about both individuals. Council considered the personal circumstances of the individual who raised their concerns, including detailed personal information that was not disclosed in open session. Council also scrutinized a municipal employee’s conduct.

21    Consequently, council’s discussion fit within the exception for personal matters about an identifiable individual.

Resolution to go into closed session

22    Before moving into a closed session, section 239(4)(a) of the Act requires a council, local board, or committee to state by resolution in open session that a closed meeting will be held and the general nature of the matter to be considered at the closed meeting.

23    The Court of Appeal for Ontario stated in Farber v. Kingston (City) that a resolution to go into a closed meeting should provide a general description of the issue to be discussed in a way that maximizes the information available to the public while not undermining the reason for proceeding into closed session.[6] My Office has determined that this means that municipalities are required to add a “level of informative detail” to the resolution to close a session to the public.[7]

24    In this case, council did not provide any information about the matter to be discussed in closed session or the closed meeting exception it relied on. Council could have provided additional information without undermining its reason for going into closed session.

25    Consequently, council contravened section 239(4)(a) of the Act at its November 20, 2023 meeting.

December 11, 2023 council meeting

26    Council met again on December 11, 2023 at 7:00 p.m. for a regular council meeting. Several unrelated items were discussed before council moved into closed session at 8:05 p.m. In resolving to move into closed session, council did not provide any information about its intended discussion.

27    In closed session, council discussed three topics: the potential sale and purchase of fire trucks, a fire department modernization plan, and a report from the municipality’s integrity commissioner regarding conduct by the Mayor. The Clerk advised our Office that council relied on the exceptions for personal matters about an identifiable individual, information belonging to the municipality that has monetary or potential monetary value, and an ongoing investigation by an appointed investigator to discuss these respective topics in closed session.

28    Our investigation indicates the Municipality’s Fire Chief and a public works manager were present for the first two of these discussions.

Sale of fire trucks and fire department modernization plan

29    Council first discussed the potential sale of two fire trucks and the purchase of a replacement truck. At the time of this discussion, two fire trucks were listed for sale online. Several councillors scrutinized this decision and expressed opinions about the conduct and job performance of an individual related to this decision. The attending Fire Chief provided a rationale for selling the two fire trucks, which included a brief discussion of the department’s equipment more generally.

30    Council’s discussion about the fire trucks led to a larger discussion about whether to move forward with the fire department modernization plan that had been approved by the previous council. The modernization plan proposed closing multiple fire stations and multiple public works facilities to build one central fire station in Markstay, which would also house a consolidated public works department. A decision to reverse course with respect to either the fire stations or public works consolidation would significantly impact planning for the other.

31    The fire department modernization plan affected many aspects of firefighting in the Municipality, including whether existing fire stations would have the required space to house the trucks that had been put up for sale. At the time of the meeting, the Municipality had already taken steps to implement the modernization plan, and the Clerk told my Office that the municipality had already reached agreements that could be impacted by council’s decision at this meeting.

32    In the closed session, council discussed a report that was made public in December of 2021. This report was drafted for the Municipality by a private company retained by the previous council and assessed logistics and specific projected costs associated with the fire department modernization plan. Several councillors raised concerns with the report and its accuracy, most notably regarding the specific cost projections detailed in the report.

33    Additionally, during the closed session, two individuals were identified by name and scrutinized for their role in developing the fire department modernization plan and for perceived shortcomings of the December 2021 report. These opinions were expressed throughout the discussion as council determined how it wished to proceed with the fire trucks and the modernization of the fire department more generally.

34    Once in open session, council voted to re-evaluate the fire department modernization plan, retrofit the existing fire stations rather than close them to build a consolidated fire station, and create a separate plan for consolidation of multiple existing public works buildings. Council also voted to proceed with the sale of one fire truck and purchase a replacement truck.

Integrity commissioner report

35    Last, council discussed a report from the municipality’s integrity commissioner regarding the conduct of the Mayor in his prior role as councillor. The report set out the integrity commissioner’s findings on a number of alleged hostile comments made by the Mayor towards an anonymous complainant.

36    In the closed session, council reviewed the integrity commissioner’s findings, discussed the conduct that was the subject of the investigation, and briefly considered what sanction it could impose. In considering potential sanctions, councillors expressed opinions about the conduct of both the Mayor and the complainant, who was identified by name during the discussion. In particular, council critiqued the conduct of the complainant and their contributions to the underlying circumstances detailed in the report.

37    Council came to a consensus that the report, along with a further discussion and decision regarding sanctions, would be addressed publicly at council’s subsequent meeting. At its meeting on January 15, 2024, the report was made publicly available and council discussed and arrived at a decision regarding sanctions.

Analysis

Sale of fire trucks

Exception for personal matters about an identifiable individual, s. 239(2)(b)

38    Council relied on the exception for personal matters about an identifiable individual to discuss the sale of fire trucks in closed session.

39    As previously stated, the exception for personal matters about an identifiable individual allows closed session discussions that reveal personal information about an identifiable individual.

40    In this case, council discussed the conduct and job performance of an identified municipal employee, which impacted whether to proceed with the sale of two fire trucks, the purchase of a replacement truck, and the fire department equipment more generally.

41    This discussion therefore contained scrutiny or opinions about an identifiable individual. This qualifies as personal information and fits within the exception.

42    In addition to its discussion of an identifiable individual, council also discussed logistics of whether to keep or sell two fire trucks. This does not itself fit within the exception for personal matters. However, in certain circumstances it may be unreasonable to expect council to parse its meetings between open and closed sessions. The Ontario Divisional Court has found this to be the case where it would “detract from free, open and uninterrupted discussion.”[8] My Office has found it unrealistic to parse a discussion between open and closed session where the topics of the discussion are significantly entwined.[9]

43    In this case, the personal information was central to council’s discussion of how to proceed with the fire trucks and was a very significant factor in council’s decision-making. The discussion was also fluid and intertwined.

44    Accordingly, it was unreasonable for council to have parsed its discussion, and the totality of the discussion fits within the exception for personal matters.

Fire department modernization plan

Exception for information belonging to the municipality, s. 239(2)(j)

45    Council relied on the exception for information belonging to the municipality to discuss the fire department modernization plan at its meeting on December 11, 2023.

46    For this exception to apply, my Office has determined that a municipality must demonstrate the discussion was about:[10]

1. A trade secret, or financial, commercial, scientific or technical information;
2. that belongs to the municipality or local board; and
3. has monetary value or potential value.

47    The Clerk told my Office that the information discussed was either a trade secret or financial information, and that there would be financial repercussions if the topic were discussed in open session because the Municipality had entered into agreements related to the fire department modernization plan.

48    In applying these criteria, my Office has determined that financial information is information relating to the use or distribution of money and must refer to specific data.[11] My Office has also found that specific cost projections meet the definition of “financial information.”[12] Because council discussed the specific cost projections detailed in the report, this information constitutes financial information.

49    My Office has also determined that reports commissioned by and provided to a municipality indicate sufficient ownership of the information contained in the reports.[13] As council retained a private company and commissioned the creation of a report about its fire department modernization plan, the information contained in it and discussed by council belongs to the Municipality.

50    With respect to the final prong of the test, my Office has found that a trade secret or financial information must have an intrinsic value, which the organization would be deprived of should the record be disclosed.[14] At the time of council’s discussion on December 11, 2023, the information contained in the report had already been publicly available since 2021. Because the information had already been publicly disclosed, the Municipality would not have been deprived of its monetary value if the discussion occurred in open session.

51    Consequently, the discussion does not fit within the exception for information belonging to the municipality.

Exception for personal matters about an identifiable individual, s. 239(2)(b)

52    The Clerk and one councillor interviewed suggested that the discussion about the fire department modernization plan could also fit within the exception for personal matters about an identifiable individual. As previously stated, this exception allows for closed session discussions that reveal personal information about an identifiable individual.

53    My Office was told that the bulk of council’s discussion of the fire department modernization plan revolved around the scrutiny of two individuals identified by name. As these discussions involved council’s scrutiny of, and opinions about, two identifiable individuals’ conduct and performance, they fit within the exception for personal matters about an identifiable individual.

54    Council also discussed whether it would move forward with the fire department modernization plan and the logistics involved in the various options available. This does not itself fit within the exception for personal matters. However, as previously discussed, it is unreasonable to expect council to parse its meetings between open and closed sessions where it would detract from free, open, uninterrupted discussion,[15] and where the topics of discussion are significantly entwined.[16]

55    Similar to council’s discussion regarding the sale of fire trucks, the personal information in this case was the centre of council’s discussion of the topic, and significantly impacted council’s decision about whether or not to proceed with the fire department modernization plan. Council’s discussions about the personal matters and the modernization plan lacked distinct portions, and were fluid and intertwined.

56    Accordingly, it would be unreasonable to expect council to have parsed its discussion, and the totality of the discussion fits within the exception for personal matters.

Integrity commissioner report

Exception for ongoing investigations by an ombudsman or appointed investigator, s. 239(3)(b)

57    My Office was told by the Clerk that council relied on the exception for ongoing investigations by an ombudsman or appointed investigator to discuss a recently completed report by the Municipality’s integrity commissioner in closed session.

58    This exception does not refer to investigations conducted by an integrity commissioner, but rather the Ontario Ombudsman, or an appointed municipal ombudsman or closed meeting investigator.[17] This exception is also intended to apply to ongoing, rather than completed, investigations.[18]

59    Consequently, the discussion does not fit within this exception.

Exception for personal matters about an identifiable individual, s. 239(2)(b)

60    My Office also considered whether the discussion about the integrity commissioner’s completed report would fit within any other open meeting exception. The Clerk and several councillors suggested the discussion would fit under the exception for personal matters about an identifiable individual.

61    Typically, discussions of integrity commissioner reports are conducted in open session. Section 223.6(3) of the Act requires that integrity commissioner reports be published by a municipality. The report in this instance was later publicly shared at council’s January 15, 2024 meeting.

62    However, there are instances where discussions related to integrity commissioner reports may be appropriate for in camera consideration. For example, in a report to the Municipality of Temagami, my Office previously reviewed a closed session discussion regarding multiple integrity commissioner reports which detailed harassing conduct involving municipal employees and members of the public.[19] My Office found that council’s discussion contained personal information beyond the individual’s professional roles that fit within the exception.

63    My Office has also found that discussions of third-party investigative reports, where employee conduct is discussed and scrutinized by council, can constitute personal information that fits within the exception.[20]

64    In this case, council discussed the underlying conduct and specific situations detailed in the report. This discussion included exchanges that were personal in nature, acrimonious, and critical of the complainant’s conduct. Council contemplated appropriate sanctions for the Mayor, and expressed opinions about his conduct, as well as the conduct of the complainant. Council identified the anonymous complainant in the report by name during its discussion. Lastly, council’s discussion of potential sanctions to impose was centred on opinions expressed by several councillors about the conduct of identifiable individuals.

65    Accordingly, council’s discussion fit within the exception for personal matters about an identifiable individual.

Resolution to go into closed session

66    As previously stated, section 239(4)(a) of the Act requires that a municipality state by resolution the fact of the holding of a closed meeting and the general nature of the matter to be discussed before proceeding into a closed meeting.

67    In this case, council’s resolution to proceed in camera did not include any information about the matters to be discussed. Council could have provided additional information without undermining its reasons for going into closed session.

68    Consequently, council contravened section 239(4)(a) of the Act at its December 11, 2023 meeting.

Recommendations

69    I make the following recommendations to assist the Municipality of Markstay-Warren in fulfilling its obligations under the Municipal Act, 2001, and enhancing the transparency of its meetings:

Report

70    Council for the Municipality of Markstay-Warren was given the opportunity to review a preliminary version of this report and provide comments to my Office. No comments were received.

71    This report will be published on my Office’s website and should also be made public by the Municipality of Markstay-Warren. In accordance with section 239.2(12) of the Municipal Act, 2001, council is required to pass a resolution stating how it intends to address this report.

__________________________
Paul Dubé
Ombudsman of Ontario

[1] SO 2001, c 25.
[2] Ontario (Ministry of Correctional Services) v Goodis [2008], OJ No 289 at para 69.
[3] Ombudsman of Ontario, Investigation into closed meetings held by the Town of Amherstburg on August 8, September 13, November 8, and November 16, 2021, (July 2022), online.
[4] Ombudsman of Ontario, Investigation into closed meetings held by Council for the Municipality of South Huron between November 2008 and December 2013, (March 2015), online.
[5] Letter from the Ontario Ombudsman to Town of Midland (4 February 2014), online.
[6] This link opens in a new tabFarber v. Kingston (City), 2007 ONCA 173 at para 21, online.
[7] Ombudsman of Ontario, Investigation into the closed meeting held by the City of Brockville’s OPP Contact Adhoc Committee on March 7, 2016, (July 2016), at para 45, online.
[8] St. Catharines (City) v IPCO, 2011 ONSC 2346 at para 42.
[9] Letter from the Ontario Ombudsman to Town of South Frontenac (29 September 2021), online.
[10] Ombudsman of Ontario, Investigation into a complaint closed sessions held by the City of Hamilton on January 16, 2019, (June 2019), online.
[11] Ibid.
[12] Ombudsman of Ontario, Investigation into a complaint about a meeting held by the Township of Leeds and the Thousand Islands on August 11, 2020, (April 2022), online.
[13] Ibid.
[14] Ibid.
[15] Supra note 10.
[16] Supra note 11.
[17] Letter from the Ontario Ombudsman to Hamilton Waterfront Trust Board of Trustees (5 June 2023), online.
[18] Ibid.
[19] Ombudsman of Ontario, Investigation into complaints about closed meetings held by the Municipality of Temagami, (February 2021), online.
[20] Ombudsman of Ontario, Investigation into whether Council for the City of Greater Sudbury held illegal closed meetings on March 2, March 23, and April 26, 2016, (January 2017), online; Ombudsman of Ontario, Investigation into closed meetings held by Council for the Town of Amherstburg on January 10 and June 2, 2015, (November 2015), online.