City of Cornwall - December 20, 2024

Investigation into a meeting held by council for the City of Cornwall on November 4, 2023

Paul Dubé
Ombudsman of Ontario

December 2024

Complaint

1    My Office received a complaint about a strategic planning session held as a closed special meeting by council for the City of Cornwall (the “City”) on November 4, 2023. The complaint raised concerns that some discussions during this meeting did not fit into any of the open meeting exceptions under the Municipal Act, 2001 (the “Act”).[1]

2    My investigation found that council contravened the Act on November 4, 2023, as the discussion during the strategic planning session did not come within any of the open meeting exceptions.

Ombudsman jurisdiction

3    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.

4    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.

5    The Ombudsman is the closed meeting investigator for the City of Cornwall.

6    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.

7    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.

8    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

9    On April 19, 2024, my Office advised the City of our intent to investigate this complaint.

10    Members of my Office’s open meeting team reviewed the open and closed meeting materials, including the agenda, minutes, presentation slides, notes provided by the Clerk, and the audio recording of the closed session. We interviewed the Mayor and the Clerk, as well as the Strategic Planning Coordinator who acted as interim clerk during the start of the meeting.

11    My Office received full co-operation during this investigation.

November 4, 2023 special council meeting

12    On November 4, 2023, council met at the OPG Visitor Centre in Cornwall at 9:00 a.m. Council then resolved to move to a closed session to discuss one item: “Strategic Planning Session.”

13    Council cited the following seven exceptions under section 239(2) of the Act to close the meeting to the public: security of the property, personal matters, acquisition or disposition of land, labour relations or employee negotiations, litigation or potential litigation, information supplied in confidence by another level of government, and plans and instructions for negotiations.

14    Council also cited the mandatory exception under section 239(3)(a) of the Act to close the meeting for a request under the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA).

15    The Clerk told us she chose the open meeting exceptions based on the responses to a strategic priorities survey council completed before the meeting agenda was created, as she expected the discussion would touch on items discussed in previous closed sessions.

16    The Clerk explained the intention of the closed session was to have an open forum for brainstorming ideas without fear of inadvertently revealing confidential information.

17    According to the meeting recording, which covers almost six hours, councillors completed various activities to assist in developing the City’s strategic plan. Council began by identifying the successes, challenges, and lessons learned over the past four years, and then moved on to a structured SWOT (Strengths, Weaknesses, Opportunities, Threats) activity in small groups. Councillors returned to the larger group to discuss the ideas and compared their responses to those prepared by City staff. Among other topics, councillors briefly discussed working conditions and recruitment within the municipality.

18    After a lunch break, staff joined the councillors and discussed the SWOT findings. During this discussion, a councillor asked staff to look into acquiring a specific piece of property for housing or other potential uses. Staff explained they had previously approached the owner and learned the price was unaffordable for the City. Another councillor noted that the City would need to own waterfront land if it wished to move forward with some of its other development plans.

19    Next, the participants again split into small groups to discuss what they envisioned for the City over the next four years. The results were discussed in the larger group, and councillors then ranked the priorities that emerged. Afterwards, the current vision and mission statements were read and participants suggested changes to enhance their inclusivity.

20    At the conclusion of the closed session, council voted at 4:30 p.m. to adjourn the meeting.

21    At a later council meeting on January 8, 2024, the Chief Administrative Officer (CAO) for the City provided a public report outlining the strategic planning session and its goals. Council passed a resolution in open session to approve the report and adopt the strategies presented.

Analysis

22    The Municipal Act, 2001 provides that all council meetings shall be open to the public, unless the subject matter of the discussion falls under one of the exceptions in section 239. There is no open meeting exception that specifically applies to a strategic planning exercise, or that is intended to allow for the free flow of ideas among councillors. Instead, council cited many different open meeting exceptions in its resolution to proceed in camera because the Clerk believed that various topics might arise based on information submitted in advance of the meeting.

23    In some cases, aspects of strategic planning may be appropriate for closed session discussion. In a report to the Township of Russell, my Office investigated a closed meeting where councillors were taught basic principles and vocabulary related to the strategic planning process in order to assist them in carrying out a subsequent strategic planning exercise in public.[2] In that case, my Office found that there was no decision-making or discussion of specific priorities or planning during the closed meeting, and therefore, the discussion fit within the open meeting exception for education and training.

24    In this case, council for the City of Cornwall was working on the substance of its strategic plan, not learning how to carry out strategic planning. The Clerk told us no decisions were made during the closed session. However, the councillors discussed and decided on strategies that formed the basis for a report that was subsequently adopted by council on January 8, 2024 for final approval. There was no substantive discussion of the strategies at the January 8, 2024 meeting.

25    Although the City cited seven of the discretionary open meeting exceptions and one mandatory exception, the Clerk told us some exceptions did not apply including those for information supplied in confidence by another level of government and for a request under MFIPPA.

26    Our review of the meeting recording did not identify any discussions that could fall under the exceptions for security of the property, personal matters, litigation or potential litigation, plans and instructions for negotiations, information supplied in confidence by another level of government, or a request under MFIPPA. However, we considered whether small portions of the discussion would have fit within other cited exceptions.

Applicability of the exception for acquisition or disposition of land

27    At various points in the discussion, councillors spoke about the possibility of acquiring property to support the City’s strategic goals. One councillor requested staff look into acquiring a specific piece of inland property for housing or other potential uses. However, staff explained the property had previously been considered and rejected. Another councillor said the City would need to own waterfront land before it could move forward with some of its development plans.

28    Section 239(2)(c) of the Act allows for in camera discussions about a proposed or pending acquisition or disposition of land. Its primary purpose is to protect the municipality’s bargaining position in property negotiations by allowing council to discuss the sale, lease, or purchase of land privately. The exception does not apply to discussions about land transactions that may or may not happen in the future. Instead, the discussion must involve an actual land transaction that is currently pending or has been proposed.[3]

29    Waterfront development has been a priority in the City in recent years. The City’s 2019 Waterfront Plan is a public document that includes a recommendation for a land acquisition task force to investigate acquiring surplus federal land along the waterfront.[4] The comments made by councillors during the closed session were consistent with this strategy, contained general information that was already public knowledge, and would not have affected the City’s future bargaining position in possible transactions. In addition, the specific inland property mentioned by the councillor had already been considered and rejected by City staff. Given the City would not be acquiring that property, there was no bargaining position to protect. Therefore, these discussions about potential land acquisitions do not come within this, or any other, open meeting exception.

Applicability of the exception for labour relations or employee negotiations

30    During the morning roundtable discussion, councillors referred to staffing and retention challenges. They suggested that increased compensation and allowing some form of remote work could help attract candidates.

31    Section 239(2)(d) of the Act provides that a meeting can be closed to discuss labour relations or employee negotiations. The purpose of the exception for labour relations or employee negotiations is to protect discussions relating to the relationship between a municipality and its employees. The phrase “labour relations” is interpreted expansively to include matters involving unionized or non-unionized staff, as well as remuneration outside of traditional employment arrangements.[5]

32    My Office has previously found that passing references without any specific information do not fall within the exception for labour relations or employee negotiations.[6] In this case, only brief comments were made related to working conditions and recruitment within the municipality. Therefore, this portion of the closed session discussion does not fall under the exception for labour relations.

Opinion

33    My investigation found that council for the City of Cornwall contravened the Municipal Act, 2001 during its meeting on November 4, 2023 by discussing issues in camera that did not fit within the open meeting exceptions.

Recommendations

34    I make the following recommendations to assist the City of Cornwall in fulfilling its obligations under the Act and enhancing the transparency of its meetings:

Report

35    Council and staff for the City of Cornwall were given the opportunity to review a preliminary version of this report and provide comments to my Office. All comments we received were considered in the preparation of this final report.

36    This report will be published on my Office’s website and should also be made public by the City of Cornwall. 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] Ombudsman of Ontario, Investigation into closed meetings held by the Township of Russell on August 10, 2015, (January 2016), at para 33, online.
[3] Ombudsman of Ontario, Investigation into closed meetings held by council for the Town of Fort Erie on December 4 and December 6, 2017, (April 2018), at para 31, online.
[4] City of Cornwall, This link opens in a new tabWaterfront Plan (July 2019), at page 59, online.
[5] This link opens in a new tabOntario (Minister of Health and Long Term Care) v Michinson, 2003 CanLII 16894 (ON CA) online.
[6] Ombudsman of Ontario, Investigation into a complaint about a meeting held by Council for the Town of Grimsby on May 2, 2016, (November 2016), at para 43, online.