The Ombudsman investigated a closed meeting held by the County of Haliburton to discuss the closure of a local hospital emergency room. The meeting was closed under the exception for information supplied in confidence by a third party. Representatives from the hospital attended the closed session and provided information to council. The County believed that the information it would receive from the third party in closed session would be supplied in confidence, however, the representatives confirmed that the information was not confidential. The Ombudsman found that the discussion did not fit into the cited exception. The Ombudsman recommended that when relying on this exception, the municipality consult with the third party providing the information ahead of the closed meeting to ensure that the information to be shared fits within the exception.
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 received a complaint alleging that council for the Town of South Bruce Peninsula improperly met in closed session to receive a delegation on March 16, 2021, contrary to the Municipal Act, 2001. The Ombudsman’s review determined that council received and discussed detailed information from a third party company regarding that company’s development plans, expected profits, and intended use of proprietary technology. We were told that the third party specifically wished to discuss this commercial information in private because it did not want to prejudice a pending land transaction or alert competitors to the proprietary technology it intended to rely on to create a profitable business in a specific area. The Ombudsman found this closed session discussion was permissible under section 239(2)(i) of the Municipal Act as council discussed information supplied in confidence by a third party that, if disclosed, could reasonably be expected to significantly prejudice the competitive position of the business and significantly interfere with an ongoing land transaction.
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 a closed meeting held by council for the Township of the North Shore relying on the exception for advice subject to solicitor-client privilege. A third-party consultant, who also served as the township’s Integrity Commissioner, attended the meeting. The Ombudsman found that council was entitled to rely on the exception for advice subject to solicitor-client privilege despite the presence of the consultant, but noted that a lack of consensus as to the consultant’s role at the meeting contributed to the impression that the meeting was improperly closed. The Ombudsman suggested, as a best practice, that meeting documents more clearly identify the capacity in which attendees participate in meetings if those attendees hold multiple positions within the township.
The Ombudsman reviewed a closed meeting held by council for Norfolk County on March 26, at which a potential candidate for the vacant interim CAO position attended. Some council members described the closed session as a “very informal interview” with the candidate. The Ombudsman found the discussion of personal information about the candidate, and the candidate’s suitability for the position fit within the exception for personal matters about an identifiable individual.
The Ombudsman reviewed a closed meeting held by council for the Township of North Huron to discuss fire personnel issues. This occurred during an ongoing dispute between the firefighters and the township. Approximately 40 firefighters entered the closed session and, through two representatives, spoke with council about various shared concerns. The Ombudsman found that nothing in the Municipal Act, 2001 prohibits municipal councils from inviting large groups to attend in camera discussions. However, this practice has the potential to create suspicion in the eyes of the public and may, in practice, undermine the confidentiality of the proceedings. The Ombudsman recommended, as a best practice, that council refrain from receiving delegations in closed session and instead have staff carry out these negotiations before reporting to council and seeking direction.
The Ombudsman reviewed a closed meeting held by council for the County of Norfolk to receive a deputation from representatives of the Port Dover Community Health Centre Board. The meeting relied on the personal matters exception. The deputation related to the board’s operations and included a request that the county release an installment of a monetary grant. The municipality highlighted that the deputation contained information that could affect the personal lives of individual members of the board. The Ombudsman acknowledged that the board was composed of volunteers, however, the deputation contained information that was professional in nature and related to the business of the board. Accordingly, the Ombudsman found that the discussion did not 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 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 Orangeville that relied on the acquisition or disposition of land exception to discuss the terms of a lease agreement. The owner of the property was present during the meeting. The Ombudsman found that the presence of the owner of the property that the municipality was seeking to acquire disqualified the discussion from fitting within the acquisition or disposition of land exception. The primary purpose of the exception is to protect the municipality’s bargaining position in property negotiations. The presence of the property owner during the discussion defeats this purpose.
The Ombudsman reviewed a closed meeting held by council for the Town of Orangeville that relied on the litigation or potential litigation exception to discuss the terms of a lease agreement. The owner of the property was present during the meeting. There was a very real likelihood of litigation if the lease negotiations failed. However, the Ombudsman found that the presence of the owner of the property that the municipality was seeking to acquire disqualified the discussion from fitting within the litigation or potential litigation exception.
The Ombudsman reviewed a closed meeting held by council for the Township of Ryerson to discuss a rezoning application with the applicant. Council and the applicant reviewed details related to a proposed haul route and site plan. Although the municipality did not rely on it, the Ombudsman considered whether the discussion fit within the litigation or potential litigation exception. The purpose of the litigation or potential litigation exception is to enable the parties to prepare their positions in private. The presence of the applicant in the closed meeting defeated that purpose. Therefore, the discussion did not fit within the litigation or potential litigation exception.
The Ombudsman reviewed a closed meeting held by council for the Township of Ryerson to discuss a rezoning application for a quarry. The meeting was closed under the exception for solicitor-client privilege. The applicant was present during the closed session and reviewed with council the details related to a proposed haul route and site plan. The municipality’s solicitor wrote the cover letter that accompanied the site plan documents. The letter set out the solicitor’s position on the draft terms. The Ombudsman found that the presence of the applicant during the meeting constitutes a waiver of any solicitor-client privilege that might have applied to the discussion. Further, the solicitor’s letter contained comments directed at the third party, not legal advice to the municipality. Therefore, the discussion did not fit within the exception for solicitor-client privilege.
The Ombudsman reviewed a closed meeting held by council for the City of Oshawa that relied on the exception for acquisition or disposition of land to discuss the acquisition of property for a consolidated operations centre. Council received information from the president of a local union about the conditions in the existing public works building. The Ombudsman found that council’s discussion fit within the acquisition or disposition of land exception. The Ombudsman noted that the delegation about the condition of the public works building would not on its own fit within the exception, however, the purpose of the delegation was directly related to the potential acquisition of the property and if the delegation was made in open session the municipality’s bargaining position could have been affected.
The Ombudsman reviewed a closed meeting held by council for the Township of Adelaide-Metcalfe that relied on the exception for solicitor-client privilege to discuss a site plan agreement and cost-sharing proposal from a local developer. The developer’s representatives were present during the closed session. The Ombudsman found that solicitor-client privilege applies to communications between a lawyer and client that entails the seeking or giving of legal advice and is intended to be confidential by the parties. In order to qualify for the exception, the privilege must not be waived by the municipality. The Ombudsman found that the presence of third parties at the closed session constituted a waiver of the solicitor-client privilege. Therefore, the discussion did not fit within the exception for solicitor-client privilege.
The Ombudsman reviewed a closed meeting held by council for the City of Hamilton that relied on the exception for acquisition or disposition of land to hear a presentation by McMaster University about a proposal to acquire lands owned by the local school board for a campus. The Ombudsman found that the presentation and council’s discussion did not fit within the exception because it was not the municipality or a local board that would be acquiring or disposing of the land. A school board is not a local board for the purposes of the Municipal Act, 2001.