Canada: A Primer On The Law Of Open And Closed Meetings

Introduction

Any person doing business with municipalities has the right to expect open and transparent decision making on the part of municipal councils, their committees and local boards. This article provides an overview of the history of open meetings in Ontario, the current rules for municipalities and what can be done if those rules are thought to have been breached.

Historical Context

At common law, there is no obligation that meetings of a municipal council must be conducted in a public or open forum. There is also no common law restriction as to when matters may be voted upon by a council or members of council.

The requirement for municipalities to hold open public meetings first arose in the Consolidated Municipal Act, 1922, which provided that the "ordinary meetings of every council shall be open and no person shall be excluded therefrom except for improper conduct." This requirement only applied to regular council meetings and special meetings of council were either open or closed according to the want of the council while committee and all other meetings were closed unless opened at the discretion of the council. In the late 1970s and early 1980s, a number of municipal councils were accused of taking "secretive actions" by virtue of holding lengthy debates and discussions on sensitive and controversial matters through committees that met in camera, and then simply resolved to implement the decisions in open council with no discussion.

In 1983, the report by the Provincial/Municipal Working Committee on Open Meetings and Access to Information made the following specific recommendation:

The report recognized that it would not be in the public interest if everything had to be discussed in public. It recommended ten specific exemptions to the general rule so that councils and committees could meet in camera. These recommendations were implemented when the open meeting requirement in s. 55 of the former Municipal Act took effect January 1, 1995. As noted by M. Rick O'Connor in Open Local Government 2, the intent of the open meeting requirement was to increase public confidence in the integrity of local government by ensuring the open and transparent exercise of municipal power.

What Constitutes A "Meeting"?

Meeting is defined in the statute to mean "any regular, special or other meeting of a council, of a local board or of a committee of either of them."

The issue of what constitutes a council meeting has been considered by the Ontario Courts on several occasions. The Courts have articulated a three-part test to determine if a gathering involving members of a council actually constitutes a meeting:

• are all council members invited to attend;
• are the matters discussed items which would ordinarily form the basis of council's business; and
• are the matters dealt with in such a way as to "move them materially along the way in the overall spectrum of a Council decision."

The General Rule And The Exceptions

The current open meeting rule in the Municipal Act, 2001 which provides as follows:

There are eight specifically enumerated exceptions to the general rule that allow a council or committee to close a meeting or part of a meeting. These are discretionary exceptions to the open meeting rule where a council or committee may hold a closed meeting according to the subject matter being considered (including the security of the municipality's property; personal matters about an identifiable individual; the purchase or sale of land; labour and employment negotiations; litigation matters; advice which is subject to solicitor-client privilege; or any other matter in respect of which a closed meeting may be held). These exceptions are, in general, restrictively construed.

A new discretionary exception permits a meeting or part of a meeting to be closed for educational or training sessions, provided:

• the meeting is held to educate or train the members; and
• nothing is discussed at the meeting that materially advances the business or decision-making of the council, local board or committee.

It is a common misconception by municipal staff and officials and the public that these exceptions are mandatory. Simply because a matter falls within one of the permitted exceptions does not require that a meeting be closed to the public. While there may be good arguments raised for the discussion to be held in the open, there may be very compelling reasons for the consideration of the subject matter to be held in camera.

The single mandatory exception where a meeting must be closed to the public is where the subject matter relates to the consideration of a request under the Municipal Freedom of Information and Protection of Privacy Act. The meeting must be closed if the council or other body is the head of the institution for the purposes of this statute. Where a municipality has designated the clerk or another official as the head of the institution (which is typical), this exemption does not apply.

Procedural Requirements

A council or committee must, prior to holding a closed meeting (including an educational or training session), resolve in open session:

• that it will hold a closed meeting; and
• disclose the general nature of the matter to be considered at the closed meeting.

Voting At A Closed Meeting

A council cannot take a vote at a closed meeting unless:

• the meeting is allowed to be closed to the public; and
• the vote is for:

• a procedural matter, or
• giving directions or instructions to officers, employees or agents of the municipality or persons retained by or under a contract with the municipality.

Accountability Controls

Two accountability measures related to closed meetings must be mentioned. The first pertains to the mandatory minutes of closed meetings. The statute requires that a municipality or a committee "shall record without note or comment all resolutions, decisions and other proceedings at a meeting of the body whether it is closed to the public or not." In general, the municipal clerk records the minutes of a council meeting but this authority may be delegated to "any person, other than a member of council."

The second accountability requirement relates to an investigative complaint mechanism that was added to the Municipal Act, 2001 and took effect on January 1, 2008. Any person may now request that an investigation be conducted as to whether a municipality or local board meeting has been improperly closed or has contravened the municipality's procedure by-law. The investigation is conducted by either a municipally-appointed investigator or by the Provincial Ombudsman (if the municipality does not appoint its own investigator). If an investigator concludes that a meeting was improperly closed to the public or was not in accordance with the procedural by-law, the investigator must report this determination to the municipality and may also (but is not required to) make recommendations. Any report made by the investigator must be made available to the public. To date, the Provincial Ombudsman (who has been very outspoken about the need for complete openness and transparency in local government) has investigated a number of complaints but has not yet found a breach of the closed meeting rules by any of the municipalities and meetings investigated.

In support of the new open meeting investigations, the Provincial Ombudsman recently released a guide entitled "The Sunshine Law Handbook: Open Municipal Meetings in Ontario." It provides an overview of open meeting legislation and contains "top 10 tips for municipal officials," including key points about open and closed meetings.

Conclusion

Today in Ontario, there is a presumption that municipal council meetings will be open to the public unless one of the statutory exceptions applies and the required procedures to close the meeting are followed. An indicator of the seriousness of closed meeting requirements is the Supreme Court of Canada decision in RSJ Holdings Inc. v. London (City) (2007), 36 M.P.L.R. (4th) 1 wherein the City of London was found to have violated the rules related to voting during closed meetings. As a result of the City's breach of the rules, an interim control by-law voted on by Council during a closed session was struck down by the Court.

Aside from seeking a declaration against a municipality from the courts for suspected violation of the open meeting rules, if any person thinks that a municipality has not followed the rules, there is a mechanism that provides for investigation of the actions of council. The meeting investigation tool has only been in place for one year and investigations to date have not found any breaches of the rules, which indicates that municipalities take seriously the spirit and requirements of the Municipal Act, 2001. However, the availability of a meeting investigation to members of the public is in place to safeguard the underlying principles of openness and accountability of municipal decision-making.

John Mascarin is a partner in the Municipal and Land Use Planning Group and Aird & Berlis LLP. He is a certified specialist in Municipal Law in both Local Government and Land Use Planning & Development. John has extensive hands-on experience in all aspects of general municipal law, spanning the alphabet from assessment to zoning. He is a well-known author, speaker and teacher and is the Editor-in-Chief of the Municipal and Planning Law Reports and the Digest of Municipal and Planning Law. John is the 2008-2009 Chair of the Municipal Law Section of the Ontario Bar Association.

Jody E. Johnson is an associate in the Municipal and Land Use Planning Group at Aird & Berlis LLP. Jody recently joined the firm and brings with her an abundance of experience gained through senior municipal positions and with the Ministry of Municipal Affairs and Housing. Jody provides advice regarding open meeting requirements, meeting procedures, local board operations, conduct of municipal elections, municipal finance and general governance matters. She also practices in the areas of building, planning and development law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.