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OPEN MEETINGS AND PUBLIC RECORD LAWS:
THE ONTARIO EXPERIENCE

By Quinto M. Annibale

INTRODUCTION

There is little doubt that over the last decade or so, the affairs of local municipalities have come under greater public scrutiny. Whether this is as a result of an increasingly more cynical local electorate or the natural evolution of the relationship between that electorate and the level of government which most directly affects our everyday lives, is debateable. This trend of greater accountability has over the years manifested itself, in part, in the form of more open government at the local level.

To be sure, this did not come about entirely as a result of enlightenment on the part of the local representatives themselves. Rather it seems to have occurred as a combined result of the demands of ratepayers and as a result of legislation imposed by the provincial governments which created municipalities in the first place. One need only examine the evolution of the common law as it relates to open meetings and public records laws in Canada (and I am sure in the U.S.) to see how this evolution has taken place.

Most provinces in Canada now have some form of municipal freedom of information legislation (and the enormous bureaucracy which of necessity accompanies it) firmly in place.1 Similarly, municipal governments across Canada (all levels) are moving towards more open styles of decision-making; either forced upon them by their provincial governments or voluntarily undertaken through their own procedural by-laws.2 Conflict of interest legislation is now quite commonplace in many provinces as well.3

It is against this backdrop that the Province of Ontario announced in early 1992 that it was changing its Municipal Act (the legislation which is the primary source of non-planning related powers for municipalities) to incorporate new rules respecting conflict of interest for municipal councillors and local boards, openness of proceedings of local Councils, rules for the conduct of municipal employees and the disposal of real property by municipalities. The part of the legislative package related to conflict of interest rules was dropped by the provincial government literally days before its scheduled proclamation date (the Act itself having actually received Royal Assent, but not proclaimed in force) as a result of the backlash from municipal councillors over the harshness and unfairness of the application of many of the proposed new rules.4 Similarly, the code of conduct for municipal employees was never acted upon. Bill 163 (as it was then), containing the balance of the promised legislative package was enacted as legislation on December 9, 1994 and the open local government parts of Bill 163 were proclaimed in force on January 1, 1995.5

This paper will briefly examine the common law and legislation related to the holding of meetings of municipal Councils prior to the enactment of Bill 163 in Ontario, as well as how Bill 163 has now modified that law and what effect that has had on the proceedings of Councils. Finally, it will examine the related issues of what now constitutes a "meeting" for the purposes of the new Act and what rights of access to municipal information are available to not only members of the public, but to councillors themselves. Finally, it will make some suggestions about what is and is not permitted in the area of informal closed meetings in the face of these new developments.

The Law Prior to Bill 163:

a) The Common Law

At common law, in the absence of a statutory provision to the contrary, proceedings of municipal Councils did not have to be open to members of the public or the press.6 It was accepted by the courts in both England and Canada that absent some statutory provision requiring meetings to be held in public, local government business could be conducted behind closed doors. Mr. Justice Goodman in the Re McAuliffe case quoted with approval the following words of Mr. Justice Middleton in the McVeity case. These words exemplify the approach:

"That case, while defining the principles applicable, differs from the case in hand, because here there has been no attempt whatever to exclude reports from the meetings of the council; but the underlying principle is the same. In the administration of the public affairs of the municipality there must be many things that cannot be transacted in public, and there must be many other things which cannot be placed before the public prematurely, if the public interests are to be properly served. Those charged with the administration of public affairs are answerable to the electorate. If their constituents do not receive due information as to how the stewardship of their representative is being administered, the result will be ascertained at the polls. The Court cannot be called upon to compel the municipal officers to give to the newspapers any information beyond that which the Municipal Act prescribes. The mayor, as the head of the corporation, has the right to require the civic officials to give out no information beyond that pointed out by the statute, without his approval and sanction. If his views do not agree with those of the council, the council can overrule his action; but the matter is essentially a domestic one, with which the Courts have no concern."7

The general rule, which in Ontario found its genesis in the McVeity case in 1915, seemed to be that because municipal corporations were creatures of statute, any right to attend the proceedings of such a statutory corporation had to be found, either expressly or by necessary implication, in the statute.8 The court found no such statutory right to exist in 1915 with respect to access to municipal information. A number of other decisions since McVeity have relied on this same principle.9

b) The Pre-Bill 163 Legislation:

Prior to Bill 163, Section 55 of the Municipal Act read as follows:

"55.(1) Open Meetings. The meetings, except meetings of a committee including a committee of the whole, of every council and of every local board as defined by the Municipal Affairs Act, except police services boards and school boards, shall be open to the public, and no person shall be excluded therefrom except for improper conduct.

(2) Exclusion of certain persons. The head or other presiding officer may expel or exclude from any meeting any person who has been guilty of improper conduct at the meetings."10

 

This provision provided for years that regular meetings of Council needed to be open to the public, but that meetings of Committees of Council or "Special Meetings" of Council did not (Section 58 for Special Meetings). In fact, the intent of the provisio n was subverted by some municipalities which had incorporated a "Committee of the Whole" system where the entire Council would sit as a Committee and would have their meetings in camera. An example of this can be found in the Pans Social case11 where the court upheld a procedure adopted by the Dartmouth Nova Scotia city Council whereby the entire Council would meet as a "Committee of the Whole" to discuss business in camera and then reconvene as a Council in public and ratify resolutions enacted during the in camera portion.

Notwithstanding these rules, many municipalities adopted as part of their procedural by-laws, procedures whereby all meetings of not only Council, but also Committees of Council and Special Meetings of Council were open to the public unless the subject matter to be discussed at that meeting fell within one of several enumerated categories of exempted subject matters. Typically the matters exempted related to matters such as personnel and labour relations, litigation and solicitor-client privilege or dealings with real estate.

The old rules did create one additional problem as it relates to local boards. Because the then Section 55 excluded committees and, by implication special purpose bodies such as local boards which derive their authority either directly from Council or from provincial statute, meetings of those entities were not required to be open. As a result, the meetings of variance and consent granting authorities (Committees of Adjustment and Land Division Committees), hydro-electric commissions, Boards of Health, Public Library Boards and the like could be held in private (including the decision making portions). The rationale for excluding Committees of Council from the requirement to be open loses some of its relevance when applied to local boards. Committees of Council had historically been excluded from the requirement to deliberate in the open because they had no actual decision making power. Municipalities, as you know, can only act through their Councils. Thus, Committees of Council could only make recommendations to Councils and in this way, the decision making by the municipality (theoretically at least) was still being conducted in the open. This logic fails when applied to local boards insofar as usually there is only one level of decision-making. Yet the law did not require their proceedings to take place in public. Therefore for these entities, decision making could, (until the advent of Bill 163) occur in private.

c) Judicial Interpretation of the Pre-Bill 163 Legislation:

As you will see later, it is worthwhile in trying to understand the new legislation, to review the three most significant pronouncements of the courts on the issue of what constitutes a "meeting". Much has been written about the decisions of the Ontario Court of Appeal in Vanderkloet12 and Hamilton-Wentworth13 and the decision of the Ontario Court General Division (Divisional Court) in Ottawa.14 Those decisions tried to come to grips with the notion of whether the gatherings of various municipal players in the circumstances of each particular case constituted a "meeting" and therefore, should be open to the public. Interestingly enough, each court took a slightly different approach, with varying results, which unfortunately for the municipal practitioner, has left the law in a relative state of uncertainty.

i) Vanderkloet

Vanderkloet is a case in which a school board, at a regular meeting of the board, passed a resolution to re-allocate students from among three schools as a cost cutting measure. Although the resolution to take the action was passed at a duly constituted public meeting, the board had met in private twice, once informally the previous week (over dinner) to consider a staff report related to projected enrollment for the three schools and again on the date the resolution was passed, immediately before the vote, to consider the issue of reducing enrollment and to discuss how to better utilize the three schools.

At issue was the validity of the resolutions given a provision in the Education Act requiring that all board meetings be open to the public. The court upheld the resolutions on the basis that the private meetings of the board were informal discussions among board members which were not precluded by the requirement in the Act. The court said:

"With respect, I do not think that the requirement that the meetings of the board should be open to the public precludes informal discussions among board members, either alone or with the assistance of their staff. Nor does the statute require that the Board prepare an agenda to be distributed to the public in advance of the board meeting. In acting as they did, I do not think that the Board violated any of the statutory provisions governing their conduct, and were not required to make public any staff reports prepared for their assistance and guidance."15

ii) Hamilton-Wentworth

In this case, a Committee of the municipality met with its staff in camera, at its regularly scheduled meeting to review the objectives and terms of reference of the Committee. The municipality’s own procedural by-law allowed some limited instances when an in camera meeting would be permitted, but the meeting in question did not fall within one of those categories. A local newspaper sought admittance to the meeting, which was denied by a vote of the Committee. The municipality defended its actions on the basis that the meeting was not a meeting for the purposes of the by-law, but rather an informal workshop of councillors and staff. The court disagreed, finding that the gathering was indeed a meeting for the purposes of the municipality’s own procedural by-law and declared therefore, that the municipality had violated its own procedural by-law by meeting in camera. The court said:

"In the context of a statutory committee, "meeting" should be interpreted as any gathering to which all members of the committee are invited to discuss matters within their jurisdiction. And that is precisely what was being done on that occasion. No matter how the meeting might be disguised by the use of terms such as "workshop", or the failure to make a formal report, the committee members were meeting to discuss matters within their jurisdiction. What the committee was trying to do was to have a meeting in camera, something expressly forbidden under the by-law."16

 

Reading the entire decision, the court appeared to be saying that the following three factors were relevant for the purposes of determining whether the meeting in that case was a meeting for the purposes of the Act:

1. That all of the members of the Council or Committee are invited;

2. That the subject matter of discussion was within the Committee’s jurisdiction; and

3. That the meeting occurred during a regularly scheduled meeting time.

It is important to note however that even though the court found that the by-law had been violated, it did not (similar to the court in Vanderkloet) foreclose entirely the possibility of informal meetings in the future. Oddly enough, the court went on to say that members of the Committee could meet privately if they met informally (even to discuss questions within the jurisdiction of the Committee), provided that it is not during regularly scheduled meeting times. Clearly, factor No. 3 above weighed quite heavily on the court’s mind and even seems to have made the pivotal difference in the facts of that case.

iii) Ottawa

In this case, the Council for the municipality held an in camera "retreat" at a resort, to which all members of Council and certain staff members were invited. The agenda for the meeting included many items which fell within Council’s mandate or jurisdiction. Once again, the local newspaper was excluded from the meeting by a vote of Council. The paper brought an application to quash that decision on the basis that the retreat was a meeting of Council which pursuant to the then Section 55 of the Municipal Act, should have been open to members of the public.

The court agreed with the newspaper and allowed the application. The court reasoned that because the agenda for the retreat included subjects which were ordinarily within Council’s jurisdiction and because the retreat served the purpose of moving Council business along, that it was in fact a Council meeting and therefore, pursuant to Section 55, should have been open to members of the public. The court put it this way:

"Clearly, it is not a question of whether all or any of the ritual trappings of a formal meeting of council are observed: for example, the prayer to commence the meeting or the seating of councillors at a U-shaped table. Neither should it depend entirely on whether the meeting takes place commencing at 2:30 p.m. on the first and third Wednesday of a month or is in substitution for such a Wednesday meeting. The key would appear to be whether the councillors are requested to (or do in fact attend without summons) attend a function at which matters which would ordinarily form the basis of council’s business are dealt with in such a way as to move them materially along the way in the overall spectrum of a council decision. In other words, is the public being deprived of the opportunity to observe a material part of the decision-making process?"17

The court characterized the proceedings thus:

"At the very least we have, in respect of the Calabogie events, councillors and the mayor meeting with staff:

(i) to discuss in a structured way matters which would ordinarily be the subject of council business,

(ii) it would seem in part to make action-taking decisions (committee head pay committee), and

(iii) to materially move along a number of matters vis-à-vis council:

(a) agenda items as reflected in the questions raised which were subsequently answered on matters that were on a critical path, with the next step being a press release of the city’s intentions in early February, as well as,

(b) the future of the chief administrative officer, as to whom steps were taken shortly thereafter to dismiss before he eventually resigned.

It does not seem to us that there has been sufficient disclosure to the court to allow us to conclude with certainty the precise nature of what occurred at the Calabogie events. Unfortunately this must weigh against the respondents in our assessment of whether these events were genuinely informal discussions within the ambit of Vanderkloet, supra (as disclosed in that case and thereafter in Hamilton-Wentworth, supra), or were in essence truly meetings.

We therefore have concluded that on the basis of the material before us it appears that in essence the Calabogie events were meetings."18

 

As mentioned, these three cases, when taken together, are not extremely helpful in discerning when a meeting is in fact a "meeting" for the purposes of the Act. In attempting to rationalize or reconcile the three cases, the following interesting points or questions are raised, and in my opinion, remain unaddressed or unanswered by these decisions:

1. Although both the Hamilton-Wentworth and Ottawa decisions appear to make relevant the issue of whether the subject matter being discussed at the meeting is normally within Council’s jurisdiction, their overall approach to the question of what factors are relevant in determining whether a meeting exists differ substantially. The Hamilton-Wentworth court gravitated more towards the formalities of a meeting (i.e. that it was during a regularly scheduled time and that all of the members of the Committee had been invited, whereas the Court in Ottawa appears to have been swayed more by looking at what the meeting accomplished substantively within the context of the decision making process.

2. Which of the 2 approaches above should be taken as the law on this issue? The "formalities" approach of the higher court (the Court of Appeal in Hamilton-Wentworth) or the "substantive" approach of the subsequent lower court decision (the Divisional Court in Ottawa)? The Divisional Court in Ottawa attempts to distinguish Hamilton-Wentworth, however it appears in the result simply to have not followed Hamilton-Wentworth (given that lower courts in this province cannot overrule higher ones). Similarly, I would speculate that the Divisional Court in the Ottawa decision, had they been given the identical facts as in Vanderkloet, would have decided that case differently than the Court of Appeal did. Clearly the school board in Vanderkloet was discussing matters within its jurisdiction (pupil re-allocation) with a view to materially moving matters towards a decision. In fact, I would suggest that even if the facts did not support such a finding, that court would have inferred one. By the same token however, Ottawa should not be ignored.

3. It is noteworthy that in none of the cases was any formal decision made in the in camera portion of the meeting. It is safe to conclude therefore that a formal decision is not a prerequisite to a finding that a meeting for the purposes of the statute took place.

4. The issue of whether a quorum of Councillors or members of a Committee is necessary before a finding that a meeting occured has been left unaddressed in these decisions (in fairness, probably because there appeared to be quorums in all three cases.19 This point is important in arriving at your own conclusion about to what extent there continues to be an ability on the part of Councillors to meet in private.

5. Both the Hamilton-Wentworth and Ottawa courts drew adverse inferences (adverse to the municipality) from the fact that there was insufficient information before the court in order to properly conclude with any certainty what the subject matter of discussion was (to a lesser extent in Ottawa). In both cases the court made findings, based in part on this lack of information, that the subject matter being discussed fell within the Council’s (or in the case of Hamilton-Wentworth, the Committee’s) jurisdiction. The upshot of this is that it will be very easy for challengers to a closed meeting in the future to meet the "jurisdiction" criteria of the Hamilton-Wentworth and Ottawa decisions because as a practical matter, revealing what goes on at a closed meeting in most cases will presumably defeat the entire purpose of going in camera in the first place. Therefore, it is not likely that the subject matter of the meeting will in any meaningful way form part of the record and thus, it is more likely than not that the adverse inference will be made.

 

Given all of this, then what is the law? In my opinion, this question cannot be answered with any precision. The best way that we can advise our municipal clients is to suggest for them some broad guidelines (my suggestions are noted below), accompanied by a stern warning that the rules are subject to change. However, in order to fully appreciate the current state of the law, it is necessary to review the new provisions of the Act as they relate to open meetings and to determine the applicability of the old case law to the new provisions to see if the law in general changes.

 

The Planning and Municipal Statute Law Amendment Act, 1994 (Bill 163):

Bill 163 received Royal Assent on December 9, 1994 and thus became the Planning and Municipal Statute Law Amendment Act, 1994. The open local government provisions (Sections 51 through 56 of the Act) which amended Sections 55, 56, 57, 58, 102 and 193 of the Municipal Act, R.S.O. 1990, c. M.45 were proclaimed in force on January 1, 1995. The sections of the Municipal Act, in their amended form, now provide as follows:

"55.(1) Open meetings. In this section,

"committee" means any advisory or other committee, subcommittee or similar entity composed of members of one or more councils or local boards; ("comité")

"local board" means a local board as defined in the Municipal Affairs Act, except municipal police services boards, library boards and school boards; ("counseil local")

"meeting" means any regular, special committee or other meeting of a council or local board. ("réunion")

(2) By-law. Every council and local board shall adopt a procedure by-law for governing the calling, place and proceedings of meetings.

(3) Open to public. Except as provided in this section, all meetings shall be open to the public.

(4) Improper conduct. The head or other presiding officer may expel any person for improper conduct at a meeting.

(5) Closed meetings. A meeting or part of a meeting may be closed to the public if the subject matter being considered is,

(a) the security of the property of the municipality or local board;

(b) personal matters about an identifiable individual, including municipal or local board employees;

(c) a proposed or pending acquisition of land for municipal or local board purposes;

(d) labour relations or employee negotiations;

(e) litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board;

(f) the receiving of advise that is subject to solicitor-client privilege, including communications necessary for that purpose;

(g) a matter in respect of which a council, board, committee or other body has authorized a meeting to be closed under another Act.

(6) Other criteria. A meeting shall be closed to the public if the subject matter relates to the consideration of a request under the Municipal Freedom of Information and Protection of Privacy Act if the council, board, commission or other body is designated as head of the institution for the purposes of that Act.

(7) Resolution. Before holding a meeting or part of a meeting that is to be closed to the public, a council or local board shall state by resolution;

(a) the fact of the holding of the closed meeting; and

(b) the general nature of the matter to be considered at the closed meeting.

(8) Open meeting. Subject to subsection (9), a meeting shall not be closed to the public during the taking of a vote.

(9) Exception. Despite subsection 61(2), a meeting may be closed to the public during a vote if,

(a) subsection (5) or (6) permits or requires a meeting to be closed to the public; and

(b) the vote if for a procedural matter or for giving directions or instructions to officers, employees or agents of the municipality or local board or persons retained by or under contract with the municipality or local board.

56.(1) Quorum. A majority of the whole number of members required to constitute a council is necessary to form a quorum.

57. Head to preside. The head of the council shall preside at all meetings of the council.

58.(1) Special meetings. Subject to the procedure by-law enacted under subsection 55(2), the head of the council may at any time summon a special meeting, and upon receipt of the petition of the majority of the members of the council, the clerk shall summon a special meeting for the purpose and at the time and place mentioned in the petition.

(2) Location. If there is no by-law or petition fixing the place of a special meeting, that meeting shall be held at the place where the last regular meeting was held.

102. General power. Every council may pass such by-laws and make such regulations for the health, safety, morality and welfare of the inhabitants of the municipality in matters not specifically provided for by this Act and for governing the conduct of its members as may be deemed expedient and are not contrary to law.

193.(1) Surplus real property, definitions. In this section,

"local board" means a local board as defined in the Municipal Affairs Act, but does not include a school board as defined in section 210.0; ("conseil local")

"sale" includes a lease of 21 years or longer. ("vente")

(2) By-laws establishing procedures. Subject to subsection (3), every council and local board with authority to sell or otherwise dispose of real property shall by by-law establish procedures, including the giving of notice to the public, governing the sale of real property.

(3) Contents. A procedure by-law passed under sub-section (2) may,

(a) establish different procedures for different classes of real property; and

(b) incorporate a procedure for the sale of real property of a council or local board required by this or any other Act.

(4) Conditions. Before selling any real property, every council and local board shall,

(a) by by-law or resolution passed at a meeting open to the public declare the real property to be surplus;

(b) obtain at least one appraisal of the fair market value of the real property; and

(c) give notice to the public of the proposed sale.

(5) No review. The manner in which the council or local board carries out the sale of its property, if consistent with the procedures by-law and this section, is not open to question or review by any court if the council may lawfully sell the property, the purchaser may lawfully buy it and the council acted in good faith.

(6) Regulations. The Minister may make regulations,

(a) prescribing classes of real property for which an appraisal under clause (4)(b) or a listing in the public register under subsection (7) is not required;

(b) prescribing public bodies or classes of them for which an appraisal is not required for a sale of real property under this section.

(7) Register. Every council and local board shall establish and maintain a public register listing and describing the real property owned or leased by the municipality or local board.

(8) Non-application. Subsections (4), (6) and (7) do not apply to a sale or other disposition of land under subsection 210.1(2).

(9) Certificate. The clerk of a municipality or the secretary of a local board may issue a certificate with respect to a sale of real property by the municipality or local board verifying that to the best of his or her knowledge and belief,

(a) a procedural by-law required under subsection (2) was in force in the municipality or local board at the time the resolution required by this section was passed;

(b) the measures required for giving notice to the public required by the procedural by-law have been carried out; and

(c) the appraisal required by this section was obtained or,

(i) the property is of a prescribed class that does not require an appraisal,

(ii) the sale is to a prescribed public body, or

(iii) the sale is under section 210.1.

(10) Effect. A certificate under subsection (9) shall be included in a deed or transfer of land and, unless a person to whom the real property is sold has notice to the contrary, shall be deemed to be sufficient proof that this section has been complied with."20

 

In my opinion, this differs from the previous sections of the Act in the following significant ways:

1. The Act now also applies to committees of Council and special meetings of Council, whereas previously it only applied to meetings of Council.

2. There is a definition of "meeting" included in the Act, although it provides little guidance in determining what factors are relevant to the consideration of what is or is not a meeting for the purposes of the section. It defines "meeting" by reference to the type of meeting, begging the real question.

3. It makes adoption of a procedural by-law mandatory, not only for Council, but for local boards as well.

4. It for the first time includes a list of subject matters which may be discussed in camera (such as litigation, personnel matters).

5. Some of the subject matters "excluded" from the open meeting requirements are discretionary (subsection 55(5)), while some are mandatory (subsection 55(6)).

6. A formal resolution of Council is now required before one of the exceptions to an open meeting can be invoked.

7. Even in matters for which in camera meetings are authorized, any voting on those matters must take place in public, subject to one very narrow exception.

8. The definition of "meeting", by cross reference to the definition of "local board" in the Municipal Affairs Act, for the first time governs the proceedings of local boards (with some exceptions).21

9. The definition of "Committee" has been made quite broad and now extends to "sub-committees", "advisory committees" and "similar entities" (but does not appear to include committees composed entirely of citizens who may advise Councils). How far reaching this definition will be is unclear.

10. For the first time there is a code of procedure governing the disposition of municipal real property, intended to make dispositions of land by municipalities more open to public scrutiny (Section 193). This Section requires the adoption, by by-law, of a procedure to declare municipal land surplus and to govern the disposition of that land, including provisions for the giving of notice to the public and the obtaining of an appraisal prior to disposition. This Section also provides for a public register of all of the property owned or leased by a municipality.

11. It is no longer possible to deal with issues related to the disposition of land in private. Presumably this would include all aspects of the disposition, including negotiations, the determination of whether it is surplus, the appraisal required by the Act,22 and the price. This will no doubt severely limit a municipality’s ability to negotiate the best price for land which it determines to dispose.

 

Suggestions for the Holding of In Camera Informal Meetings:

Keeping in mind the warning given above respecting the uncertain state of the law, what follows are my suggestions for how informal in camera meetings should be conducted to comply with the new Act given the case law. Please keep in mind that the Court of Appeal decisions in Hamilton-Wentworth and Vanderkloet are still the highest level of court pronouncement in Canada and, to the extent that you agree that Ottawa diverges from rather than distinguishes those dicta, those two decisions are therefore still the highest authorities on the subject. Please also consider that I feel Bill 163 has changed the law somewhat on this specific point by expanding the definition of "meeting" and "committee" in the new legislation to include "sub-committees", "advisory committees" and "similar entities". With those caveats in mind, the following are my suggestions:

1. An in camera meeting involving a quorum of members of Council, a committee or sub-committee of Council should be avoided. While a quorum by itself (in the absence of the other indicia set out by the courts) may not trigger a finding that a meeting has taken place, the absence of a quorum certainly can be used to make the argument that a "meeting" of an "entity" cannot occur without a quorum. As mentioned, this issue was not addressed in the cases because quorums appear to have been present in all cases.

2. Similarly, informal meetings to which all members of Council or a particular committee are invited should not be held in camera.

3. The meeting should not be conducted at a regularly scheduled time for a meeting of Council or a committee. Rather, it should be informal or ad hoc.

4. In camera meetings of an informational nature would still be permitted (i.e. staff meeting with Council to be briefed) whether a quorum exists or not. However, I believe that based on the "moving the matter forward test in Ottawa" a court would have little difficulty in finding that meetings of councillors with staff or amongst themselves to discuss Council business where there is a quorum of Council (or a committee) present and where the nature of the meeting is that of a discussion rather than a briefing, the test has been contravened. On the other hand, my feeling is that the same meeting without a quorum would be more defensible.

5. In my opinion, the same rules would apply to meetings of councillors with ratepayers or developers. The former Minister of Municipal Affairs suggested in a letter to all municipalities that the Act would not apply to meetings involving outside interests and that the word "committee" in the Act meant a type of formal committee which has been given some mandate by Council.23 With respect, I cannot agree with either assertion. The words of the statute do not limit the meaning in the way suggested by the ex-Minister.

6. If a meeting of councillors is convened, with or without a quorum, care should be taken not to give the meeting a title (such as "Dump Site Sub-Committee Meeting") especially if the group of councillors meeting are not a standing (or even ad hoc) committee of Council.

7. As you can appreciate, as a practical matter it will be quite difficult, if not impossible, to call an informal meeting of councillors and hope to limit debate or the proceedings in the manner suggested above. Certainly if the municipal clerk is invited to the meeting, the new legislation should make his or her job much more interesting.

 

Public Records Laws:

Access to Information by the Public

Prior to the enactment of the Municipal Freedom of Information and Protection of Personal Privacy Act, R.S.O. 1990, c. M.56 (MFOIPPA), the law of access to municipal information was governed by Section 74 of the Municipal Act, which read as follows:

"74.(1) Inspection and copying of minutes, etc.C Any person may, at all reasonable hours, inspect any of the records, books or documents mentioned in section 73 and the minutes and proceedings of any committee of the council, whether the acts of the committee have been adopted or not, and other documents in the possession or under the control of the clerk, and the clerk shall, within a reasonable time, furnish copies of them, certified under the clerk’s hand and the seal of the corporation of the municipality, to any applicant on payment of such rate as the council may by by-law establish."24

 

With the enactment of MFOIPPA, a whole new set of rules and procedure were introduced which govern the collection, storage and dissemination of information held by municipalities and with the protection of personal privacy. This has had, and will continue to have, implications for the rules respecting open meetings. As mentioned earlier, the new provisions of the Municipal Act make mandatory the requirement that all requests made under the MFOIPPA be dealt with in camera (if Council is designated the head of the institution for the purposes of that Act).

Beyond this, the Act contains extensive protection against the release of information which constitutes "personal information" for the purposes of the Act.25 It has been suggested that because the MFOIPPA contains a conflict clause which provides that in the event of a conflict between the confidentiality provisions of MFOIPPA and the confidentiality provisions of any other act, the provisions of the MFOIPPA will prevail, Councils will have to ensure that they do not discuss any "personal information" at an open Council meeting.26 The same would be true of those categories of information whose disclosure is made discretionary. If the decision is made not to disclose, then neither should the information be discussed in public. This might be somewhat difficult to achieve during the course of an ordinary Council meeting where personal information is not expected to be discussed.

Access to Information by Councillors:

One would have thought that councillors would have an automatic right to access any information contained in the records of the municipality. This does not appear to be entirely true. The law on this issue appears to be that where a member has a "need to know" in order to assist the councillor in the carrying out of the councillor’s duties as a councillor, then he or she is entitled to that information.27 The obvious question is doesn’t a councillor always have a need to know if the information forms part of the municipal records? While certainly that point is arguable, it is my opinion that this test would not be met if the councillor was acting as a mere agent for a third party and using his or her office to obtain the information or if the disclosure of the information generally would prejudice the interests of the municipality.

Two other criteria must be met before the information can be released. They are:

1. The information should only be released to the councillor if it will not prejudice the person to whom the information relates.

2. If the information provided is of a confidential nature, there is an obligation to maintain the confidentiality of the information. (It has been suggested that this second criteria is now subsumed in the amendment to Section 102 of the Municipal Act in Bill 163.)28 The suggestion is that there is a new power to regulate the conduct of members outside of the Council meeting context and that therefore, it is possible to prevent the disclosure of information learned by councillors at a closed meeting.
  1. Newfoundland: Freedom of Information Act, R.S.N. 1990, c. F.25
    Nova Scotia: Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5
    New Brunswick: Right to Information Act, R.S.N.B. 1989, c. 299
    Quebec: An Act Respecting Access To Documents Held By Public Authorities and the Protection of Personal Information, R.S.Q. 1977 c. A2.1
    Ontario: Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56
    Manitoba: Freedom of Information Act, S.M. 1985-86 c. 6
    Saskatchewan: Local Authority Freedom of Information and Protection of Privacy Act, c. 27.1
    Alberta: Freedom of Information and Protection of Privacy Act, S.A. 1994, c. F18.5
    British Columbia: Freedom of Information and Protection of Privacy Act, S.B.C. 1992, c. 61
  2. Sub-section 55(2) of the Municipal Act, R.S.O. 1990, c. M.45 requires every Council and every local board to adopt a procedural by-law to govern the proceedings of meetings. The previous authority for procedural by-laws was Section 102. It had made procedural by-laws discretionary, however many municipalities had adopted them and they set out what was to be open and closed in the way of meetings.
  3. Nova Scotia: Municipal Conflict of Interest Act, R.S.N. 1989, c. 299
    New Brunswick: Conflict of Interest Act R.S.N.B. 1973, c. C-16.1
    Quebec: An Act Respecting Elections and Referendums R.S.Q. c. E2.2
    Ontario: Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50
    Manitoba: Municipal Conflict of Interest Act, C.C.S.M. M.225
  4. One of the most unpalatable aspects of the legislation for many local councillors was the fact that the legislation was more onerous than the conflict of interest rules the provincial legislature had passed for itself only a short time before.
  5. Bill 163 was actually an omnibus bill which amended several pieces of legislation, including substantial changes to the Ontario's Planning Act, R.S.O. 1990 c. P.13. The changes to the Municipal Act dealing with open local government formed part of this Bill.
  6. Tenby Corporation v. Mason [1908] 1 Ch. 457; Journal Printing Co. v. McVeity (1915), 33 O.L.R. 166; Re McAuliffe and Metropolitan Toronto Board of Commissioners of Police (1975), 61 D.L.R. (3d) 223.
  7. Ibid., Re McAuliffe, p. 230.
  8. Journal Printing, p. 174.
  9. Calgary (City) v. Cominco Ltd. [1983] 2 W.W.R. 320 (Alta. Q.B.); R. v. Popadynec [1977] 3 W.W.R. 175 (Sask. Dist. Ct.); and Re Oshawa (City) Ward Redivision (1985), 17 O.M.B.R. 353 (M.B.).
  10. Municipal Act, R.S.O. 1990 c. M.45.
  11. Pans Social & Recreation Club v. Dartmouth (1979), 9 M.P.L.R. 65.
  12. Vanderkloet et al. v. Leeds and Granville County Board of Education (1985), 30 M.P.L.R. 230 (O.C.A.).
  13. Southam Inc. v. Economic Development Committee of The Regional Municipality of Hamilton-Wentworth (1988), 40 M.P.L.R. 1.(O.C.A.).
  14. Southam Inc. v. Ottawa (City) (1991), 10 M.P.L.R. 76 (Div. Ct.).
  15. Vanderkloet at p. 242.
  16. Hamilton Wentworth at p. 7.
  17. Ottawa at p. 82.
  18. Ibid., at p. 83.
  19. Vanderkloet at p. 238; the Divisional Court decision in Hamilton-Wentworth (32 M.P.L.R. 282) makes this point at p.286. Interestingly enough, the court frames the question as one of whether an informal meeting of a "quorum" of the Committee can constitute a meeting which must be open under the by-law. This issue does not appear to have been discussed in the Court of Appeal; and Ottawa at p. 78.
  20. Municipal Act R.S.O. 1990 c. M.45 ss. 55, 56, 57, 58, 102 and 193.
  21. See Sub-section 55(1) of the Municipal Act, R.S.O. 1990 c. M.45.
  22. For a more comprehensive analysis of the potential problems with the property disposition sections of the new Act see Wicher, Gordon, "Bill 163, The Open Meeting Provisions" (1995) 3 D.M.P.L.
  23. See copy of letter from Minister of Municipal Affairs dated March 16, 1995 attached as Appendix "1".
  24. Municipal Act R.S.O. 1990, c. M.45.
  25. See Part IV of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990 c M.56.
  26. See Plamandon, Susan, "Open Local Government, What Can be Discussed Behind Closed Doors" October 1992 published in Canadian Bar Association Seminar, 1992.
  27. R. v. Barnes Borough Council ex parte Conlan (1938) 3 A.E.R. 226; R. v. Hackney London Borough Council ex parte Gamper (1984) Law Society Gazette (13 Februrary 1985); Birmingham City District Council v. O. et al. (1983) A.C. 578; and Rex v. Southwold Corporation ex parte Rightson (1907) 97 L.P. 431.
  28. Municipal World, September 1995, p. 2.

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