The Ombudsman found that an in camera session held by council-in-committee for Norfolk County on November 15, 2023 to discuss a staff report on local development charges did not fit within the open meeting exception for litigation or potential litigation, as the possibility of litigation was speculative. Similarly, the Ombudsman also found that council’s in camera discussion on January 9, 2024 about a sign purchase did not fit within the open meeting exception for litigation or potential litigation, as the risk of litigation was speculative.
Norfolk County - November 22, 2024
City of Brockville - August 15, 2022
The Ombudsman reviewed a complaint that council for the City of Brockville contravened the Municipal Act, 2001 when it went in camera on October 13, 2021. Council’s in camera discussions pertained to an employee’s performance in their role and to the employee’s conduct. The Ombudsman found that council’s in camera discussion on October 13, 2021 was not permissible under the exception at paragraph 239(2)(e), litigation or potential litigation. There was no ongoing litigation at the time of the October 13, 2021 meeting and any concern about litigation was speculative.
City of Timmins - May 9, 2017
The Ombudsman reviewed a closed meeting held by council for the City of Timmins, which relied on the litigation or potential litigation exception to discuss an open procurement project. The municipality held the meeting in closed session due to concerns that an unsuccessful bidder might initiate legal proceedings against the municipality. The Ombudsman found that the litigation or potential litigation exception applies in the context of anticipated litigation where there is more than a remote possibility litigation may commence, although the litigation need not be a certainty. While it is not unusual for litigation initiated by unsuccessful bidders to occur at the conclusion of the procurement process, in this case, the municipality’s concern that litigation could occur was speculative. Accordingly, the Ombudsman found that the discussion did not fit within the litigation or potential litigation exception.
Township of Russell - May 3, 2017
The Ombudsman reviewed a closed meeting held by council for the Township of Russell which relied on the litigation or potential litigation exception to discuss the naming rights for a new sports facility. The Ombudsman found that there was no evidence to indicate that council was considering ongoing litigation or had realistically contemplated a legal proceeding. It was mere speculation. Accordingly, the Ombudsman found that the discussion did not fit within the litigation or potential litigation exception.
Town of Midland - June 3, 2016
The Ombudsman reviewed a closed meeting held by council for the Town of Midland to discuss options related to a site plan agreement for a subdivision located in the municipality. The meeting was closed under the litigation or potential litigation exception. The site plan agreement had been the subject of complaints by residents. At the time of the meeting there was no specific threat of litigation or pending litigation with respect to the site plan agreement. Council’s discussion focused on matters that theoretically could lead to litigation depending on how council proceeded. The nature of the matter and the tone of communications between the municipality, residents and the developer was contentious. The Ombudsman found that the discussion did not fit within the litigation or potential litigation exception because litigation or other legal action did not rise above mere speculation.
Town of South Bruce Peninsula - October 6, 2015
The Ombudsman reviewed a closed meeting held by council for the Town of South Bruce Peninsula to discuss a contract related to the Wiarton Keppel International Airport. The meeting was closed under the litigation or potential litigation exception. Council discussed the potential sale of the airport and a contract for airport fuel tank removal. The Ombudsman found that council did not discuss any litigation in progress or even contemplated litigation with respect to the contract. The prospect of litigation was mere speculation. Therefore, council’s discussion did not fit within the litigation or potential litigation exception.
Township of Tiny - February 1, 2013
The Ombudsman reviewed a closed meeting held by council for the Township of Tiny that relied on the litigation or potential litigation exception to discuss possible amendments to the zoning by-law. Council’s discussion mentioned the possibility that litigation could arise in the future as a result of the proposed amendments. There was no litigation ongoing or threatened at the time of the meeting. The Ombudsman found that the discussion did not fit within the litigation or potential litigation exception, and instead involved mere speculation.
United Townships of Head, Clara and Maria - September 7, 2012
The Ombudsman reviewed a closed meeting held by council for the United Townships of Head, Clara and Maria to discuss a code of conduct complaint made by a member of the public against a member of council. The meeting was closed under the litigation or potential litigation exception. The Ombudsman found that there was no evidence of any current or future legal proceeding related to the code of conduct complaint. Mere speculation that litigation may arise is not sufficient to bring the matter within the litigation or potential litigation exception.
Town of Amherstburg - March 17, 2011
The Ombudsman reviewed a closed meeting held by council for the Town of Amherstburg that relied on the litigation or potential litigation exception to discuss the naming of a recreation complex located in the municipality. The municipality believed that the naming rights for the complex was a matter that could result in future legal action. However, at the time of the meeting, there was no actual evidence of any current or future legal proceedings related to the matter. The Ombudsman found that the discussion did not fit within the litigation or potential litigation exception because there was no reasonable prospect of litigation and any discussion relating to potential litigation was mere speculation.
Town of Kearney - December 2, 2010
The Ombudsman reviewed a special closed meeting held by council for the Town of Kearney that relied on the “litigation or potential litigation” exception to discuss a rezoning application. As with any rezoning matter, there was a possibility that council’s decision would be appealed. However, the possibility of appeal is not sufficient to bring a matter within the realm of potential litigation. The Ombudsman found that council lacked the degree of certainty necessary to make the potential for litigation a reasonable prospect. Therefore, the matter did not fit within the exception for litigation or potential litigation.