Orientation Session: District Municipality of Muskoka Presen… · Orientation Session: District Municipality of Muskoka . M. Rick O’Connor, CMO . City Clerk and Solicitor . City

Orientation Session: District Municipality of Muskoka

M. Rick O’Connor, CMO City Clerk and Solicitor City of Ottawa

Friday, January 9, 2015 Bracebridge, Ontario

“I CANNOT TEACH ANYBODY ANYTHING, I CAN ONLY MAKE THEM THINK”

(a)Methodology (b)Powerpoint (c)Vegas Rule

Socrates (470-399 B.C.)

CITY OF OTTAWA

Population – 900,000 Area: 2,758 square kilometres (half the size of Prince Edward Island) 5th largest City in Canada – both in Population and Land Area 90 kilometres east to west (almost 80% rural)

“AN EXPERT IS ANYONE FROM OUT OF TOWN”

“It is better to give than receive – especially advice”

Mark Twain (1835-1910)

“Figures often beguile me, particularly when I have the arranging of them myself; in which case the remark attributed to British P.M. Disraeli would often apply with justice and force: There are three kinds of lies: lies, damned lies and statistics”

Mark Twain, North American Review (1906)

“Canadians are profoundly dissatisfied with the ethical standards and behaviour of politicians. Half of Canadians say they do not trust politicians to behave ethically in their roles...They are ranked well below judges, police officers, public servants, journalists, business CEO and union leaders.”

Public Perceptions of the Ethics of Political Leadership

(November 2014)

PRESENTATION OVERVIEW

1. Some Law Stuff 2. 3 R’s 3. Secret Meetings 4. Important Acronyms 5. Conflicts of Interest & other Bad Things 6. Some Other Law Stuff

1. SOME LAW STUFF: LEGISLATION

Major Statutes: Constitution Act, 1982 and Canadian Charter of

Rights and Freedoms; Municipal Act, 2001

MANY OTHER ACTS Municipal Act, 2001 Clean Water Act Planning Act Line Fences Act Drainage Act Municipal Conflict of Interest Act Municipal Elections Act Accessibility for Ontarians with

Disabilities Act Drainage Act Tile Drainage Act Development Charges Act Provincial Offences Act Weed Control Act Employment Standards Act Employer Health Tax Act Commissioners for Taking

Affidavits Act Assessment Act Emergency Management and Civil

Protection Act Fire Protection and Prevention Act Waste Diversion Act Conservation Authorities Act

Municipal Freedom of Information and Protection of Privacy Act

Personal Health Information Protection Act

Cemeteries Act Safe Streets Act Human Rights Code Lake Simcoe Protection Act Long Term Care Homes Act Marriage Act Municipal Affairs Act Municipal Arbitrations Act Retail Business Holidays Act Municipal Water and Sewer Transfer

Act Negligence Act Nutrient Management Act Highway Traffic Act Police Services Act Ontario Heritage Act Ontario Municipal Board Act Places to Grow Act Technical Standards and Safety Act Protection of Livestock and Poultry

from Dogs Act

Day Nurseries Act Occupational Health & Safety

Act Pay Equity Act Public Libraries Act Safe Drinking Water Act Vital Statistics Act Workplace Safety and

Insurance Act, 1997 Green Energy Act, 2009 Greenbelt Act Building Code Act, 1992 Dog Owners Liability Act Fluoridation Act Water Opportunities Act Health Protection and

Promotion Act Judicial Review Procedures

Act Occupational Health and

Safety Act Ontario Municipal Employees

Retirement Services Act Public Libraries Act Public Sector Salaries

Disclosure Act

MANY OTHER ACTS CONT’D

Municipal Conflict of Interest Act Emergency Management and Civil Protection Act Occupational Health and Safety Act Accessibility for Ontarians with Disabilities Act, 2005 Municipal Freedom of Information and Protection of

Privacy Act

Municipal Act, 2001

“Municipalities have asked for a modern, streamlined Municipal Act that gives them new flexibility to react quickly to local economic, environmental or social changes” [Minister] Hodgson said. “We’ve consulted extensively. We’ve worked hard with municipal and business groups to find the right balance between municipal flexibility and strong accountability to taxpayers. The proposed new Act reflects that balance.”

“Harris Government Delivers Promised Municipal Act”

(Media Release: October 18, 2001)

07/01/2015

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“Municipalities are created by the Province of Ontario to be responsible and accountable governments with respect to matters within their jurisdiction and each municipality is given powers and duties under this Act and many other Acts for the purpose of providing good government with respect to those matters.”

Municipal Act, 2001 s.2

“The powers of a municipality shall be exercised by its council.”

[Municipal Act, 2001 s.5(1)]

“A municipal power...shall be exercised by by-law

unless the municipality is specifically authorized to do otherwise.” (e.g. resolution)

[Municipal Act, 2001 s.5(3)]

“Every by-law of a municipality (a) Shall be under the seal of the corporation; and (b) Shall be signed by the clerk and by the heads

of council or presiding officer at the meeting at which the by-law was passed.”

Municipal Act, 2001 [s. 249(1)]

General Municipal Powers (a) Natural Person Powers – s. 9

In an effort to give local municipalities increased

flexibility in order to discharge their duties, Section 8 of the Act provides that a municipality has “the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or any other Act.”

Ten Spheres of Jurisdiction – s. 11

The Municipal Act, 2001 would give municipalities broad authority to pass by-laws within the following areas:

1. Public utilities; 2. Waste management; 3. Public highways; 4. Transportation systems; 5. Culture, parks, recreation and heritage; 6. Drainage and flood control; 7. Parking 8. Economic development services; 9. Structures not covered by the Building Code Act,

including fences and signs; and 10. Animals.

Statutory Restrictions Section 14 of the Act broadly states that a municipal

by-law is without effect to the extent that it may conflict with a provincial or federal Act (including a regulation made under such an Act), or “an instrument of a legislative nature, including an order, licence or approval, made or issued under a provincial or federal Act or regulation.”

Section 15 requires that the power to enact a by-law

under Section 8 or 11 and under a specific provision of the Municipal Act or any other statute “is subject to any procedural requirements, including conditions, approvals and appeals, that apply to a power and any limits on the power contained in that specific provision.”

Section 17 prohibits municipalities from imposing taxes (among other financial restrictions).

Section 19 largely limits municipalities to having by-laws and resolutions within their geographic boundaries.

Municipal Statute Law Amendment Act, 2006 (Bill 130 in 2007)

Based on the provincial review of the Municipal Act,

2001 which began in June 2004, Bill 130 was introduced on June 15, 2006 and given Royal Assent on December 20, 2006, largely coming into force on January 1, 2007.

Bill 130 included over 200 pages of amendments to the Municipal Act, 2001, which were largely adopted from the separate municipal statute for Toronto, being the City of Toronto Act, 2006.

The bulk of the amendments in Bill 130 were described by the Association of Municipalities of Ontario (AMO) as moving “Ontario toward a more mature relationship with municipal governments by reducing Provincial micro-management and providing broader, accountable for municipal governments to pass laws.”

Bill 130 provided a series of “broad powers” to municipalities, including the following:

1. Governance structure of the municipality and its local boards;

2. Accountability and transparency of municipality and its local boards and their operations;

3. Financial management of the municipality and its local boards;

4. Public assets of the municipality; 5. Economic, social and environmental well-being of the

municipality; 6. Health, safety and well-being of persons; 7. Services and things that the municipality is authorized

to provide; 8. Protection of persons and property, including consumer

protection; 9. Animals; 10. Structures, including fences and signs; and 11. Business licensing.

SOME LAW STUFF: GOVERNANCE

What is “governance?” “Governance determines who has power, who

makes decisions, how other players make their voice heard and how account is rendered.”

Institute on Governance

In addition, there were a number of accountability and transparency measures included in Bill 130, including a mandatory Closed Meeting Investigation Officer and the following discretionary tools/offices: Code of Conduct for Members of Council; An Integrity Commissioner; An Ombudsman; An Auditor General; A Lobbyist Registry; and A Lobbyist Registrar.

BILL 8 PUBLIC SECTOR AND MPP ACCOUNTABILITY ACT, 2014

Ontario Ombudsman may investigate a complaint into municipalities, local boards and municipally-controlled corporations as defined by the Municipal Act, 2001.

Received Royal Association on December 11th, 2014, however the relevant Schedules will come “into force” in the future – TBD!

“Bill 8 Good News for Ontarians: Ombudsman Andre Marin – As your Ombudsman, I now have expanded powers to protect you.”

Toronto Sun (January 3, 2015)

MANDATORY POLICIES Under Section 270, municipalities were required

to adopt and maintain the following policies: 1) Its sale and other disposition of land; 2) Its hiring of employees; 3) Its procurement of goods and services; 4) The circumstances in which the municipality shall

provide notice to the public (including the form, manner and times the notice shall be given);

5) The manner in which the municipality will try to ensure that it is accountable to the public for its actions and will try to ensure that its actions are transparent to the public;

6) The delegation of its powers and duties.

DELEGATION OF POWERS AND DUTIES

Section 23.1 enables a municipality “to delegate its power and duties under this or any other Act to a person or body.”

The “conditions and limits” that a council considers appropriate may include: Procedures that the delegate is required to follow;

and/or The accountability of the delegate and the

transparency of the delegate’s activities and decisions.”

Section 23.3(1) states that municipalities cannot delegate eight powers and duties including: The power to appoint or remove from office an

officer of the municipality whose appointment is required by the Act (e.g. Clerk, treasurer)

The power to adopt an official plan; The power to pass a zoning by-law; and The power to adopt or amend the budget of the

municipality

OTTAWA’S DELEGATION OF POWERS POLICY

Policy statement: City delegates its powers and duties to support efficient management of operations, and to ensure appropriate accountability and reporting is assigned to each delegation.

Principles include: All delegation of powers and duties shall be set out in the

Delegation of Authority By-law and reviewed every term of council. Unless expressly delegated by council through the Delegation of

Authority By-law, all powers and duties of council remain with Council

Every delegation of a power or duty of council shall be accompanied by a corresponding accountability and transparency mechanism.

DELEGATION OF AUTHORITY BY-LAW

Delegates specific authority to senior officers of the municipality

Schedules in the By-law outline specific delegation for each department

Council may rescind or impose terms and conditions on delegations outlined in the By-law

OTTAWA’S ACCOUNTABILITY AND TRANSPARENCY POLICY Identifies a series of principles, including:

Decision-making will be open and transparent; Financial oversight, service standards and performance

reporting and all other accountability documents will be made available and accessible, in language that the public can understand, to increase the opportunity for public scrutiny and involvement in municipal operations; and

Every new delegation of power or authority will have a corresponding accountability mechanism. (e.g. In the Delegation of Authority By-law)

2. THREE R’S: ROLES, RESPONSIBILITIES & RELATIONSHIPS

Municipal Act, 2001 – Section 224

It is the role of council, (a) to represent the public and to consider the well-

being and interests of the municipality; (b) to develop and evaluate the policies and

programs of the municipality; (c) to determine which services the municipality

provides;

Municipal Act, 2001 – Section 224

It is the role of council, (d) to ensure that administrative policies, practices and procedures

and controllership policies, practices and procedures are in place to implement the decisions of council;

(d.1) to ensure the accountability and transparency of the operations of the municipality, including the activities of the senior management of the municipality;

(e) to maintain the financial integrity of the municipality; and (f) to carry out the duties of council under this or any other Act.

Municipal Act, 2001 – Section 225

It is the role of the head of council, (a) to act as chief executive officer of the municipality; (b) to preside over council meetings so that its business can be

carried out efficiently and effectively; (c) to provide leadership to the council;

Municipal Act, 2001 – Section 225

It is the role of the head of council, (c.1) without limiting clause (c), to provide information and

recommendations to the council with respect to the role of council described in clauses 224 (d) and (d.1);

(d) to represent the municipality at official functions; and (e) to carry out the duties of the head of council under this or any other

Act

Municipal Act, 2001 – Section 226.1

As chief executive officer of a municipality, the head of council shall,

(a) uphold and promote the purposes of the municipality; (b) promote public involvement in the municipality’s activities; (c) act as the representative of the municipality both within and

outside the municipality, and promote the municipality locally, nationally and internationally; and

(d) participate in and foster activities that enhance the economic, social and environmental well-being of the municipality and its residents.

Municipal Act, 2001 – Section 227

It is the role of the officers and employees of the municipality,

(a) to implement council’s decisions and establish administrative practices and procedures to carry out council’s decisions;

(b) to undertake research and provide advice to council on the policies and programs of the municipality; and

(c) to carry out other duties required under provincial legislation and other duties assigned by the municipality.

Municipal Act, 2001 – Section 228(1) A municipality shall appoint a clerk whose duty it is, (a) to record, without note or comment, all resolutions,

decisions and other proceedings of council; (b) if required by any member present at a vote, to

record the name and vote of every member voting on any matter or question;

(c) to keep the originals or copies of all by-laws and of all minutes of the proceedings of the council

(d) to perform the other duties required under this Act or any other Act; and

(e) to perform such other duties as are assigned by the municipality.

Municipal Act, 2001 – Section 286 A municipality shall appoint a treasurer who is responsible for handling all

of the financial affairs of the municipality on behalf of and in the manner directed by the council of the municipality, including,

(a) collecting money payable to the municipality and issuing receipts for those payments;

(b) depositing all money received on behalf of the municipality in a financial institution designated by the municipality;

(c) paying all debts of the municipality and other expenditures authorized by the municipality;

(d) maintaining accurate records and accounts of the financial affairs of the municipality;

(e) providing the council with such information with respect to the financial affairs of the municipality as it requires or requests;

(f) ensuring investments of the municipality are made in compliance with the regulations made under Section 418.

Municipal Act, 2001 – Section 229

A municipality may appoint a chief administrative officer who shall be responsible for,

(a) exercising general control and management of the affairs of the municipality for the purpose of ensuring the efficient and effective operation of the municipality; and

(b) performing such other duties as are assigned by the municipality.

RELATIONSHIPS

“Canadians want public servants to work together, and many believe the growing tension and mistrust between them is bad for policy making and the country. About 66% of Canadians think public servants should “actively” provide expert advice and recommend policies, compared to 18% who say their job is simply to implement the desires of politicians.”

Mistrust between Bureaucrats and Politicians Bad for Canada: Survey Ottawa Citizen (December 26, 2014)

“And nearly three-quarters of those asked believe the best policies would come from a ‘collaborative’ working relationship between

public servants and politicians. Only 10% believe ‘tension’ would generate better policy.

**************

Once politicians get advice from their bureaucrats, 72% of

Canadians believe they should then base their decisions on the priorities of their constituents over their own judgement and

experience.”

Mistrust between Bureaucrats and Politicians Bad for Canada: Survey

Ottawa Citizen (December 26, 2014)

HOW MANY RELATIONSHIPS?

Not just a single relationship: Head-Councillor/Head-Council Councillor-Councillor/Councillor-Council Councillor-Public/Council-Public Head-Staff Councillor-Staff Council-Staff Staff-Public Staff-Staff

WHY RELATIONSHIPS MATTER?

Relationships affect the municipality’s business. People are the essence of any organization and

how people get along (or don’t) can significantly impact an organization

Work relationships influence things like: Productivity; Morale; or Absenteeism

Relationships can mean the difference between a good day or a bad day; and feeling appreciated versus being taken for granted.

RECOGNIZE OUR DIFFERENCES

Council Members chosen by, and from, the electorate

Staff hired based on professional expertise Council Members make decisions based on the

perceived wishes of the community Staff makes decisions and/or provides

objective, professional advice based on academic training and/or experience.

RECOGNIZE OUR DIFFERENCES

Council Members are generally elected for four year terms (via one-on-one political debate/conflict)

Staff may be appointed to positions that could span a full career (including skills regarding teamwork/compromise/rational persuasion)

Council Members focus on what they can achieve during the course of their current term of office

Staff tends to think in terms of five, ten and twenty year cycles

A FEW QUESTIONS

Why are the changes that municipal councils recently experienced so troubling?

Why do we think that there should only be a single, consistent standard for council and staff relations?

How can we expect to be treated the same when our jobs are very different?

A FEW ANSWERS/ASSUMPTIONS

Unrealistic expectations of those being elected to public office

Councillors who seek to act as Managers Managers who assume rights of Councillors Lack of understanding as to what municipal

“governance” is all about

“Local government managers depend upon the strength of many relationships in fulfilling their responsibilities. None is more important, however, than the relationship of a manager and his or her council.”

Victor S. DeSantis Dean of Graduate Studies and Research

Millersville University

RELATIONSHIP AIDS

Delegation of Powers and Duties Codes of Conduct

Staff Members of Council

Statutory Policies (s. 270, Municipal Act, 2001)

Council Strategic Priorities

3. SECRET MEETINGS

“Ask any smart politician whether Canadians have a right to know what lawmakers and bureaucrats are up to behind closed doors, and the air grows chewy with soothing reassurances. Who doesn’t endorse access, openness, transparency, freedom of information, accountability?”

Toronto Star Editorial September 12, 2005

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“Meetings behind closed doors should take place only when authorized. The City clerk’s office, in consultation with the Legal Services Division, should provide clear reasons why any such meeting is necessary, and unless the Municipal Act specifically requires that something should be discussed in camera, it should not be.”

Madame Justice Bellamy Commissioner Toronto Computer Leasing Inquiry

(September 12, 2005)

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“Individual councillors should object to meeting behind closed doors if they believe that it is not necessary or justified. The clerk should make public all comments or discussions held in camera that do not rightly belong there.”

Madame Justice Bellamy

Commissioner Toronto Computer Leasing Inquiry (September 12, 2005)

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Recommendation No. 75: “Council should take steps to enhance the openness of council meetings.”

Madame Justice Bellamy Commissioner Toronto Computer Leasing Inquiry

(September 12, 2005)

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“Municipal law has changed to require that municipal governments hold meetings that are open to the public, in order to imbue municipal governments with a robust democratic legitimacy. The democratic legitimacy of municipal decision does not spring solely from periodic elections, but also from a decision-making process that is transparent, accessible to the public, and mandated by law. When a municipal government improperly acts with secrecy, this undermines the democratic legitimacy of its decision, and such decisions, even when intra vires, are less worthy of [judicial] deference.”

London (City) v. RSJ Holdings Inc. Supreme Court of Canada (2007)

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“Nevertheless, it is clear that Mississauga, and indeed all municipalities, require a better ethical infrastructure. Members of the public have the expectation that mayors, other members of council, and public officials will conform to ethical standards. …It is fundamental that members of the public do not have to depend only on the personal ethical standards of elected officials. I have laid out the framework for the changes I believe are required.”

Mr. Justice Cunningham,

Commissioner, Mississauga Judicial Inquiry (October 3, 2011)

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“I wish I could tell you stuff that happens behind closed doors.” “These in-camera meetings, there’s more corruption and skullduggery going on in there than I’ve ever seen in my life.” “It’s confidential and I wish you guys knew what happened in-camera,” [Mayor] Ford said.”

Foulidis v. Ford Ontario Superior Court of Justice (2012)

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“Yet we have seen a marked disparity between municipalities in how they interpret the rules. Some are strictly accountable to their citizens and embrace openness in their operations. Some are shockingly secretive, suspicious and resentful of the very idea they can be investigated. And many are well-intentioned but baffled by the complexities of the law.”

André Marin, Ontario Ombudsman 2011-2012 OMLET Annual Report

(October 30, 2012)

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“Ontarians deserve an equal level of transparency from their local governments, no matter where they live. Some municipalities deliver, but many are falling short.” “Instead, what we have in Ontario today is a system where some municipalities flout the law repeatedly or devise silly strategies to get around it, while others observe it strictly – and still others function in blissful ignorance.”

André Marin, Ontario Ombudsman 2012-2013 OMLET Annual Report

(December 11, 2013)

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PROCEDURE BY-LAW

“Every municipality and local board shall pass a procedure by-law for governing the calling, place and proceedings of meetings.”

Municipal Act, 2001, ss. 238(2)

NOTICE

“The procedure by-law shall provide for public notice of meetings.”

Municipal Act, 2001, ss. 238(2.1)

“A municipality shall adopt and maintain policies with respect to the following matters: The circumstances in which the municipality shall

provide notice to the public and, if notice is to be provided, the form, manner and times notice shall be given.”

Municipal Act, 2001, ss 270(1)

NOTICE CONT’D “Proper notice is recognized as one of the hallmarks of natural justice. There is no doubt that both the Council and staff in the Township fully endorse the principle of public participation in the decision-making process. However, the recognized right to make representations on issues of public interest is a hollow one if a member of the public is not given adequate notice of the meetings where these issues are being debated and voted upon by their elected representatives.”

Southgate (Township), Amberley Gavel Ltd. No. 1 and No. 2 (May 2012)

OPEN MEETINGS: GENERAL RULE

“Except as provided in this section, all meetings shall be open to the public.”

Municipal Act, 2001, ss. 239(1)

“Section 239(1) of the Act requires that all meetings shall be open to the public unless the subject matter being considered comes within an exception listed in Subsection (2). In light of the increased powers of municipalities, the mandatory wording of s. 239 that meetings “shall” be open to the public except in narrowly defined situations, and the specificity of the exceptions, it seems clear that the purpose of these provisions is to ensure that, in general, municipal authority is exercised openly.”

RSJ Holdings Inc. v. London (City) Ontario Court of Appeal (November 2005)

“Section 239 of the Municipal Act provides that all meetings of a municipal council, local board, or a committee of either of them, shall be open to the public. This is one of the elements of transparent open government.”

Deep River (Town), Amberley Gavel Ltd. (June 2010)

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TWO TOPICS MUST BE IN CAMERA

1. MFIPPA Meeting shall be closed to the

public to consider a request under the Municipal Freedom of Information and Protection of Privacy Act, IF the council is the “head of an institution” for that Act.

Municipal Act, 2001, ss. 239 (3)(a)

TWO TOPICS MUST BE IN CAMERA

2. Bill 8 - Ombudsman Meeting shall be closed to the

public IF the matter concerns “an ongoing investigation...by the Ombudsman.”

Municipal Act, 2001, ss. 239 (3)(b)

EIGHT TOPICS THAT MAY BE IN CAMERA

“However, the Act also provides for a limited number of exceptions that would allow a local council to meet in closed session (i.e. in camera). The grounds set out in Section 239 of the Act are discretionary, not mandatory. Prior to moving into closed session, even when the issue involves a ground set out in Section 239, members of Council have a duty to ask themselves whether there is a confidentiality issue that overrides the basic right of the public to have their elected members govern in open session.”

Deep River (Town) Amberley Gavel Ltd. (June 2010)

EIGHT TOPICS – SECURITY OF THE PROPERTY

s. 239(2) A meeting, or part of a meeting, may be closed to the public if the subject matter being considered is,

(a) security of the property of the municipality:

1) Morris-Turnberry, (Municipality), Ontario Ombudsman (August 2012)

2) Kincardine (Municipality) Amberley Gavel Ltd. (August 2014)

EIGHT TOPICS – PERSONAL MATTERS s. 239(2) A meeting, or part of a meeting, may be closed to the public if the subject matter being considered is,

(b) Personal matters about an identifiable individual,

including municipal employees: 1) Fort Erie (Town), Ontario Ombudsman (May 2013) 2) Municipality of Central Huron, Ontario

Ombudsman (March 2013)

EIGHT TOPICS – ACQUISITION/DISPOSITION s. 239(2) A meeting, or part of a meeting, may be closed to the public if the subject matter being considered is,

(c) a proposed or pending acquisition or

disposition of land; 1) Brant (County), Amberley Gavel Ltd. (January

2013) 2) Acton BIA Board, Ontario Ombudsman

(September 2013)

EIGHT TOPICS – LABOUR RELATIONS/EMPLOYEE NEGOTIATIONS

s. 239(2) A meeting, or part of a meeting, may be closed to the public if the subject matter being considered is,

(d) labour relations or employee negotiations:

1) Bonfield (Township), Ontario Ombudsman (October 2013) 2) Timmins (City), Ontario Ombudsman (April 2014)

EIGHT TOPICS - LITIGATION s. 239(2) A meeting, or part of a meeting, may be closed to the public if the subject matter being considered is,

(e) litigation or potential litigation:

1) Uukkivi v. Lake of Bays (Township), Ontario Superior Court of Justice(November 2004)

2) RSJ Holdings Inc. v. London (City), Ontario Court of Appeal (November 2005)

3) Georgina (Town), Amberley Gavel Ltd. (September 2012)

EIGHT TOPICS – SOLICITOR-CLIENT PRIVILEGE

s. 239(2) A meeting, or part of a meeting, may be closed to the public if the subject matter being considered is,

f) advice subject to solicitor-client privilege

1) Adelaide Metcalfe (Township), Ontario Ombudsman (March 2013)

2) Detlor v. Brantford (City), Ontario Court of Appeal (2013) 3) Ajax (Town), Ontario Ombudsman (April 2014)

EIGHT TOPICS – ANOTHER ACT

s. 239(2) A meeting, or part of a meeting, may be closed to the public if the subject matter being considered is,

g) a matter by which council may hold a closed meeting

under another Act: 1) London (City) v. RSJ Holdings Inc., SCC (2007) 2) Amherstburg (Town), Ontario Ombudsman (December

2011)

EIGHT TOPICS – EDUCATION/TRAINING

Educational or Training Sessions

(3.1) A meeting of a council or local board or of a committee of either of them may be closed to the public if the following conditions are both satisfied:

1. The meeting is held for the purpose of educating or training the members.

2. At the meeting, no member discusses or otherwise deals with any matter in a way that materially advances the business or decision-making of the council, local board or committee.

EIGHT TOPICS – EDUCATION/TRAINING

1) Oshawa (City), “The ABCs of Education & Training”, Ontario Ombudsman (March 2009)

2) Amherstburg (Town), Ontario Ombudsman (December 2011)

3) Midland (Town), Ontario Ombudsman (Sept 2012)

EIGHT TOPICS – MOST APPROPRIATE EXCEPTIONS

“The Municipal Act does not require the agenda or minutes to list all the possible exceptions to the open meetings provisions that might apply to the subject matter under consideration. There are many matters that might properly fall within several exceptions. It is our opinion that the agenda or resolution should establish the most appropriate exception under the Act that applies to the subject matter under consideration. Using the most appropriate exception will allow for greater openness and transparency while balancing a municipal council’s need to sometimes consider confidential issues in closed meetings.”

Georgina (Town), Amberley Gavel Ltd. (September 2012)

EIGHT TOPICS – MOST APPROPRIATE EXCEPTIONS

“Council should ensure the most appropriate exception is cited for each portion of its in-camera discussions.

Tiny (Township), Ontario Ombudsman (February 2013)

IN CAMERA MOTION

A council shall state by resolution:

1. The fact of the holding of the closed meeting; and

2. The general nature of the matter to be considered at the closed meeting.

Municipal Act, 2001, ss. 239(4)

MOTION – “GENERAL NATURE OF THE MATTER”

“Admittedly, including the ‘general nature’ of the closed session discussions, sometimes involves a delicate balance between the transparency encouraged by the Act and the confidentiality required to protect the interests of individuals and of the municipal corporation. However, an attempt should be made to be as specific as possible. Such specificity would give greater confidence to members of the public that their council was acting in accordance with the “open and transparent government” requirements encouraged by the Municipal Act.

Deep River (Town), Amberley Gavel Ltd. (March 2010)

MOTION – “GENERAL NATURE” CONT’D

It is also now recognized that it is a “best practice” to attempt to give some specificity to the resolution authorizing a closed session without impairing the confidentiality of an issue. Subsection 239(4) of the Act requires that, prior to going into closed session, council pass a resolution stating “the fact of the holding of the closed meeting and the general nature of the matter to be considered at the closed meeting” [emphasis added]. It is our view that it is more in keeping with the intent of this subsection that councils should go beyond simply referencing one of the exceptions for going in camera set out in subsection 239(2) of the Act.

Highlands East (Municipality), Amberley Gavel Ltd. (November 2008)

MOTION – “GENERAL NATURE” CONT’D

1) Farber v Kingston (City), Court of Appeal (2007)

2) Essex County, Amberley Gavel Ltd. (September 2009)

MOTION – “GENERAL NATURE” CONT’D

City of Ottawa’s Procedure By-law requires that motions to move into closed session also include the nature of the closed session discussion: “the general nature of the matter to be considered at the closed meeting by reference to the specific issue to be considered at the closed meeting”.

MOTION – “GENERAL NATURE” CONT’D

IN CAMERA ITEMS* 15. AIRPORT PARKWAY PEDESTRIAN / CYCLING BRIDGE - UPDATES - IN CAMERA - REPORTING OUT DATE: RECOMMENDATION 1 TO BE REPORTED OUT UPON RESOLUTION OF LITIGATION; RECOMMENDATION 2 IS NOT TO BE REPORTED OUT RIVER (16) That, in accordance with Procedure By-law 2006-462, as amended, the Finance and Economic Development Committee resolve In Camera:

MOTION – “GENERAL NATURE” CONT’D

1) pursuant to Subsection 13(1)(e), litigation or potential litigation, affecting the City, including matters before administrative tribunals and Subsection 13(1)(f), the receiving of advice that is subject to solicitor-client privilege, including communications necessary for that purpose, with respect to matters concerning the Airport Parkway Pedestrian/Cycling Bridge; and

2) pursuant to Subsection 13(1)(d), labour relations or employee negotiations and Subsection 13(1)(f), the receiving of advice that is subject to solicitor-client privilege, including communications necessary for that purpose, with respect to the personnel assessment of responsibility arising from the Airport Parkway Pedestrian/Cycling Bridge.

THE ‘TIPPING POINT’?

Council agrees to $37M LRT lawsuit deal Councillors Diane Holmes and Clive Doucet speak with city solicitor Rick O'Connor moments before they convene for an emergency city council meeting to discuss the LRT lawsuit settlement.

(Ottawa Sun, September 11, 2009)

IN CLOSED SESSION

If the resolution states that Council will go into closed session to discuss Matters A & B, Council should only discuss Matters A & B

“The chair of Council must be vigilant in ruling out of order items being raised at a closed meeting which have not been considered in the authorizing resolution adopted prior to the meeting.”

Southgate (Township), Amberley Gavel Ltd. (May 2012)

IN CLOSED SESSION CONT’D

Hamilton’s Procedure By-law states that “the Clerk shall advise the Mayor or Chair, if in his or her opinion, a matter or portion of a matter being discussed in a meeting that’s closed to the public is not procedurally appropriate” with the Municipal Act, 2001 or the By-law.

Toronto’s Council Procedures has a similar role

for the Clerk with respect to “advising on closed meeting rules”.

IN CLOSED SESSION - VOTING

In general, a meeting shall not be closed to the public during the taking of a vote

Municipal Act, ss. 244 and ss. 239(2) Three exceptions:

1. A procedural matter or 2. For giving directions/ instructions to staff or

persons under contract [ss. 239(6)]; or 3. Annual appointment of upper-tier “head of council”

by “secret ballot” [ss. 233(5)].

IN CLOSED SESSION – VOTING CONT’D

1) Amherstburg (Town), “Behind Closed Doors”, Ombudsman Ontario (December 2011)

2) Leeds and Thousand Islands (Township), Ontario Ombudsman (April 2012)

3) Greater Sudbury (City), Ontario Ombudsman (August 2012)

4) Lambton Shores (Municipality), Ontario Ombudsman (January 2013)

BACK IN OPEN SESSION

Toronto’s Council Procedure aptly notes that a “meeting’s beginning and end [are] always public.”

OPEN SESSION – RISE/REPORT

“Although the Municipal Act does not require any report from the closed meeting of Council to the open meeting, it is a best practice to do so. Providing a brief summary of what happened at the closed session, as is the practice in the Municipality, without divulging the substance of the closed meeting discussions (which would undermine the reason for excluding the public) adds to the transparency and openness in municipal government.”

Thames Centre (Municipality), Amberley Gavel Ltd. (November 2009)

OPEN SESSION - RISE AND REPORT

Generally summarizes what Council did in closed session: Received advice from municipal solicitor Did or did not give direction to staff Did or did not pass any procedural motions

OPEN SESSION - RISE AND REPORT

Council resolved In Camera at 11:00 a.m.

IN CAMERA SESSION

IN COUNCIL Council resumed in open session at 11:40 a.m. Upon resuming in open session, Mayor Watson indicated Council had met In Camera and that the matters dealt with were related to the City Manager’s employment contract. There were no votes taken during the In Camera session, other than to give directions to staff or to deal with procedural matters.

WHAT’S A MEETING? “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.”

Southam Inc. v Hamilton-Wentworth (Region)

Ontario Court of Appeal (1988)

“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 the month or is in substitution for such a Wednesday meeting. The key would appear to be whether the councillors are requested to attend (or do, in fact, attend without summons) 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?”

Southam Inc. v Ottawa (City) Ontario Divisional Court (1991)

“Applying these [two] cases, it is clear that briefing sessions held in Yellowknife were meetings within the jurisdiction of council (the test applied in the Hamilton-Wentworth case) and that they dealt with matters which form the basis of council’s business and were dealt with in such a way as to move them materially along in the overall spectrum of the council’s decision (the test applied in the Ottawa (City) case)”

City of Yellowknife Property Owners Assoc. v Yellowknife (City)

S.C.N.W.T. (1998)

WHAT’S A MEETING?

Common Law’s Three-Part Test: (1) Whether Councillors are invited to attend (2) Whether the matters discussed would

ordinarily form the basis of Council’s business

(3) Whether those matters are dealt with in such a way as to move them materially along the way in the overall spectrum of a decision

WHAT’S A MEETING? CONT’D

Ombudsman’s Approach: 29. Taking into consideration the court decisions on open

meeting requirements, I have concluded that the legal definition of when a meeting is a “meeting” under the Act should be interpreted as follows: Members of council (or a committee) must come together for the purpose of exercising the power or authority of the council (or committee), or for the purpose of doing the groundwork necessary to exercise that power or authority.

Greater Sudbury (City), Ontario Ombudsman (April 2008)

WHAT ABOUT E-MEETINGS

1) Nipissing (Township), Ontario Ombudsman (February 2009)

2) Leamington (Municipality), Ontario Ombudsman (January 2013)

3) Clarence Rockland (City), Ontario Ombudsman (November-December 2011)

“I recognize that in any legislative body there will always be informal meetings among smaller groups of legislators. In his evidence, [the City Manager] described scenarios in which councillors might receive briefings on substantial and confidential matters outside the council chambers and its protections. This practice should be discouraged. This kind of informality can only lead to difficulty, and it is evident that in this instance it led to confusion surrounding who (if anyone) was advised of the Borealis veto, and in what setting. I note that informal meetings are not permitted under the Municipal Act, 2001.”

Mr. Justice Cunningham Commissioner, Mississauga Judicial Inquiry

(October 3, 2011)

103

Phase I Recommendation 1 Informal Meetings of Council “No informal meetings of city council should be allowed. For clarity, it is not appropriate for city business, including briefings from officials which would otherwise be discussed at a council meeting, to be discussed in an informal setting.”

Mr. Justice Cunningham

Commissioner, Mississauga Judicial Inquiry (October 3, 2011)

104

With apologies to (and to paraphrase) comedian Jeff

Foxworthy…

105

You might be at a meeting if: 1) a quorum is present; (or maybe not); 2) it’s in Chambers/or the “usual” meeting room; 3) it’s regularly scheduled; 4) rules are followed (agenda, minutes, etc.); 5) decision-makers are present; 6) they discuss matters within their jurisdiction or

exercise a power/authority; 7) discussion moves such matters materially along the

decision-making spectrum and/or does the groundwork for such actions; and

8) there is a vote!

106

4. IMPORTANT ACRONYMS

1. I.M. (Information Management); and 2. MFIPPA (Municipal Freedom of Information

and Protection of Privacy Act)

“Poor Records led to Hwy. 174 sinkhole” Ottawa Sun (December 7, 2012)

WHY KEEP RECORDS?

We are legally obligated to do so Section 254(1) of the Municipal Act, 2001 states

that a municipality “shall retain and preserve the records of the municipality and its local boards in a secure and accessible manner.”

Section 255 of the Act further states that municipalities may – with the municipal auditor’s approval – establish retention periods for their records.

Over 280 pieces of legislation require the creation and/or retention of municipal records.

Good governance demands it Assures the protection of the public’s rights Integral to the municipality’s Accountability and

Transparency Policy Instills public confidence in the work of the municipality Provides evidence of decisions and actions Facilitates ATIP and litigation requests and aids with

Routine Disclosures Ensures that the municipality’s archival legacy is

preserved.

Financial benefits come from doing it “45% of the US workforce spends three or more

hours a week just searching for information in the workplace.”

Staff can “re-purpose” existing content in records instead of “starting from scratch”

Storage costs of physical and electronic content can be kept in check by properly classifying, and ultimately, destroying records

INFORMATION IS AN ASSET

If “Information is power”: then, not being able to quickly and accurately access information must erode that power.

Some municipalities require two signatures to access petty cash and demand employees to track their leave by the hour: Information deserves the same level of respect.

Staff process information, distributes it and records it, therefore, every job at the municipality deals directly with information.

OTTAWA’S CORPORATE RECORDS MANAGEMENT POLICY

Information, like time and money, is a City asset that must be managed in a transparent and accountable manner.

Staff must create, identify and maintain

records that document our business transactions and activities.

Municipal Freedom of

Information and Protection of Privacy Act

WHAT IS MFIPPA?

Provincial statute Affects municipalities, local boards and

commissions Similar laws on federal and provincial levels MFIPPA administered by “Head of the

Institution” and Coordinator

PURPOSE: STRIKES A BALANCE

Access to Information Right of public access to government information Subject to limited and specific exemptions Independent review by Information and Privacy

Commissioner (“IPC”) Protection of Privacy During collection, use and disclosure of personal

information Right of access to own personal information Right to correct personal information held by

municipality

SCOPE OF MFIPPA

Any “record” in “custody and control” of the municipality can be requested Record = any machine readable information,

including papers, electronic data, drafts, e-mails, voice-mails, photos, videos, notes, post-its, and PIN-to-PIN communication

Must retrieve responsive information if possible to do so by means of hardware, software, or IT expertise (even if we have to create new program or new algorithm)

SCOPE OF MFIPPA

MFIPPA does not cancel out routine disclosure or “business-as-usual” requests (e.g. Council agendas, committee reports, budgets, consultant’s studies, etc.)

Information to be made public in 90 days not addressed via formal access requests

Records lawfully destroyed under Records Retention By-law are not responsive

MFIPPA REQUESTS AND PROCESS

Requests Requests received in writing with $5

application fee – sent to ATIP Office Requests must be clear - obligation on

municipality to clarify, if necessary ATIP staff may contact requester to narrow

request if very broad – requester’s consent required

30 days to respond to requester

Municipality can: Decide to disclose or not to disclose records Advise requester that 3rd party views sought Impose an extension of time Transfer request to another institution (e.g.

Ottawa Police Service, Provincial Ministry)

Exemptions to Disclosure Confidential information of another government (federal or

provincial) Proprietary third-party information – commercial,

technological or financial information of third party supplied in confidence where disclosure would harm third-party

Information subject to the municipality’s solicitor/client privilege

Staff or consultant “advice or recommendations” Information about ongoing law enforcement matter Personal information

MFIPPA prescribes how the municipality collects, uses and discloses personal information

What is “personal information?” Any information about an identifiable individual,

including phone number, address, marital status, family history, employment history, education, financial status, medical condition, personal views or opinions, criminal history...

BUT not information about person in business capacity (e.g. Position title, business address, business phone number)

No Exemptions to Disclosure for... Draft documents (except by-laws) and multiple

versions of same/revised record Embarrassing statements Hand-written notes Candid or frank e-mails (if they pertain to

municipal business – MFIPPA applies)

BILL 8 – TWO MFIPPA AMENDMENTS

1. A requirement that the Head of the Institution ensure that reasonable measures regarding the records in the custody or under the control of the institution are developed, documented and put in place to preserve the records in accordance with any applicable record-keeping or records retention requirements whether established under the Act or otherwise;

2. A new provincial offence – with a $5,000 fine – for any person who alters, conceals or destroys a record (or causes another person to do so) with the intention of denying access right under MFIPPA.

MFIPPA DO’S AND DO NOT’S

1. DO assume all records are subject to MFIPPA 2. DO assume someone will read everything you

record 3. NEVER destroy records requested under MFIPPA 4. DO forward records to ATIP office ASAP...the clock

is ticking 5. DO think of privacy and security when setting-up

electronic applications and update security features as required.

MFIPPA DO’S AND DO NOT’S

6. DO, when working with personal information, respect privacy of individual

7. DO provide training for your staff as required 8. When retaining outside consultant, consider

executing a non-disclosure agreement 9. NEVER promise confidentiality to a third-party

entity – MFIPPA may require disclosure.

5. CONFLICTS OF INTEREST & OTHER BAD THINGS

3. “I will disclose any pecuniary interest, direct or indirect, in accordance with the Municipal Conflict of Interest Act.”

Declaration of Public Office

(Section 232, Municipal Act, 2001)

“Conflicts/Declarations of (Pecuniary) Interest” Heading found on almost every Committee and

Council Agenda Opportunity for Members to “declare” any

conflicts in relation to items listed on that Agenda Declared by the Member or a judge (e.g.

municipal Clerk and Solicitor cannot provide advice to individual Members)

“The obvious purpose of the Act is to prohibit members of council and local boards from engaging in the decision-making process in respect to matters in which they have a personal, economic interest.”

Ontario Divisional Court, Moll v. Fisher (1979)

“The MCIA is important legislation. It seeks to uphold a fundamental premise of our governmental regime. Those who are elected, and as a result, take part in the decision-making processes of government, should act, and be seen to act, in the public interest. This is not about acting dishonestly or for personal gain; it concerns transparency and the certainty that decisions are made by people who will not be influenced by any personal pecuniary interest in the matter at hand. It invokes the issue of whether we can be confident in the actions and decisions of those we elect to govern. The suggestion of a conflict runs to the core of the process of governmental decision-making. It challenges the integrity of the process.”

Ontario Divisional Court, Tuchenhagen v. Mondoux (2011)

“A major purpose of the MCIA is to promote transparency in municipal decision-making by requiring the councillor to declare a conflict when he or she has a pecuniary interest at stake. However, the legislation is also designed to prevent the conflict in interest that would arise if a member were to vote when he or she could benefit financially from the outcome of the council decision.”

Ontario Divisional Court,

Madger v. Ford (2013)

Q: How is a “conflict of interest” defined in the statute?

A: No express definition or explanation in the Act.

General Understanding:

When your “public duty” CONFLICTS

with your “private interest”

Three types of pecuniary interests: 1. “Direct” Pecuniary Interest 2. “Indirect” Pecuniary Interest 3. “Deemed” Pecuniary Interest

Direct Pecuniary Interests Financial interest or money Gain or loss No monetary restriction

Indirect Pecuniary Interests (Section 2, MCIA)

Where a Member, or his or her nominee: a) Is a shareholder/director or senior officer of a

“private” corporation; b) Has a controlling interest in [10% of voting rights] or

is a director or senior officer of a “public” corporation; c) Is a member of a body; or d) Is a partner/employee

Deemed Pecuniary Interests (Section 3, MCIA)

Direct or indirect pecuniary interest of these family members: a) Parents b) Spouse c) Children if “known” to the Member

“… the standard to be applied cannot properly be neatly captured in a series of guidelines. I accept that it is best expressed by the question posed by the Divisional Court in Re: Greene v. Borins: Does the matter to be voted upon have the potential to affect the pecuniary interest of the municipal councillor? It is an objective test not reliant on subjective feelings.”

Justice Howden Tolnai v. Downey (2003)

“Exemptions” (Section 4, MCIA)

1) Nine Specific Exemptions; and 2) Two General Exemptions

Nine Specific Exemptions: As a user of any public utility service; An allowance, honorarium, remuneration or benefit

for being a member; Membership on another body as an appointee of the

council or local board; Director or senior officer of a corporation carrying on

business for and on behalf of the municipality.

Two General Exemptions: An “interest in common with electors generally”

means a pecuniary interest in common with the electors within the area of jurisdiction and, where the matter under consideration affects only part of the area of the jurisdiction, means a pecuniary interest in common with electors within that part” (Section 1, MCIA); or

An interest which is so remote or insignificant… unlikely to influence the member.

Duty of member (Section 5, MCIA)

When present at a meeting the member shall, prior to any consideration of the matter:

1) Disclose the interest and its general nature; 2) Not participate in the discussions; 3) Not attempt to influence in any way (before, during or

after) the vote; 4) Not vote; and 5) Leave the meeting if closed to the public.

Record of Disclosure (Section 6, MCIA)

Open meeting; Clerk records “every declaration of interest and general nature thereof” in the minutes;

Closed meeting; Clerk records the “declaration of interest but not the general nature of that interest” in the minutes of the next open meeting;

If the Member is absent; the disclosure procedures must occur at the next meeting he or she attends.

Enforcement (Section 9, MCIA)

An “elector” can apply to a judge to determine if Act was breached;

Application must be filed within six weeks of learning of Member’s alleged contravention;

No application after six years from date of alleged breach.

Penalties (Section 10(1), MCIA)

If guilty, Member’s seat shall be declared vacant;

Judge may disqualify Member for up to 7 years;

Judge may order restitution to a party or municipality.

Savings Provisions (Section 10(2) MCIA)

Inadvertence; or

Error in judgment;

Only appeal is to Divisional Court (Section 11, MCIA)

MCIA – WHAT’S NEXT?

1. “Overhaul municipal conflict rules, inquiry head urges: Justice Douglas Cunningham says the province needs to clarify rules about conflict of interest and can broaden the scope of current law” Toronto Star (October 3, 2011)

2. “Conflict of Interest laws under review: Chiarelli” Toronto Sun (November 29, 2012)

3. Ontario – AMO Joint MOU (December 2012)

4. “Rob Ford decision: What the Experts Think. Some say change the law; others advise politicians to change their ways; some just see uncertainty.” Toronto Star (January 25, 2013)

5. Minister of Municipal Affairs and Housing – Mandate Letter (September 25, 2014)

6. “Province to consider changes to conflict of interest laws: Sharp criticism in the wake of cases involving Rob Ford and Hazel McCallion prompts Ontario to review Municipal Conflict of Interest Act” Toronto Star (November 6, 2014)

OTHER BAD THINGS: BIAS “1. I will truly, faithfully and impartially exercise this

office to the best of my knowledge and ability.”

Declaration of Public Office (Section 232, Municipal Act, 2001)

Traditional Test for Bias: Reasonable Apprehension “There must be circumstances from which a reasonable man

would think it likely or probable that the Justice or Chairman, as the case maybe, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The Judge was biased’.”

Lord Denning (Eng. C.A., 1969)

Disqualifying Bias “Some degree of prejudgement is inherent in the role of

municipal councillor but a disqualifying bias can be made when a councillor has a personal interest in the matter. Where such an interest is found, both at common law and by statute, a member of council is disqualified if the interest is so related to the exercise of public duty that a reasonably, well-informed person would conclude that the interest might influence the exercise of that duty”

Old St. Boniface Residents Association v Winnipeg (City)

S.C.C. (1990)

Municipal Test for Bias: Amenable-to-Persuasion “...a member of a municipal council is not

disqualified by reason of bias unless he or she has prejudged the matter to be decided to the extent of being no longer capable of persuasion.”

Save Richmond Farmland Society v. Richmond (Township)

S.C.C. (1990)

“The Supreme Court [of Canada in Old St. Boniface Residents Association Inc. v. Winnipeg (City), [1990] held that, where political and legislative duties are engaged, fairness requires only that the predisposition of the legislators [Councillors] not be so firm that submissions are futile because minds are utterly closed. That is quite different from a claim that fairness commands that minds must be utterly open.”

Atkins v. Calgary (City) Alta. C.A. 1994)

OTHER BAD THINGS: BAD FAITH

“A by-law passed in good faith under any Act shall not be quashed or open to review in whole or in part by any court because of the unreasonableness or supposed unreasonableness of the by-law.”

(Section 272, Municipal Act, 2001)

So what is “Bad Faith”? “Bad Faith by a municipality connotes a lack of candour, frankness and impartiality. It includes arbitrary or unfair conduct and the exercise of power to serve private purposes at the expense of the public interest.”

Equity Waste Management v. Halton Hills (Town) (1997) Ontario Court of Appeal

“A by-law is enacted in bad faith where the council acted unreasonably and arbitrarily and without the degree of fairness, openness and impartiality required of a municipal government. [The Judge’s] findings led him to the conclusion that the municipality had acted for a collateral purpose and that the process followed had not been characterized by the frankness, openness, impartiality and regard for the rights of the respondents that was required of a municipality.”

Grosvenor v. East Luther Grand Valley (Township) (2007)

Ontario Court of Appeal

“I acknowledge that appeasing a group of residents out of self-interest may support a finding of bad faith. But such cases must be rare. A court should not be quick to find bad faith because members of a municipal council, influenced by their constituents, express strong views against a projects … the evidence shows that a few councillors, fewer than a majority, had their re-election prospects in mind when they voted on the by-law. The evidence falls short of showing bad faith by the Council.”

Equity Waste Management v. Halton Hills (Town) (1997) Ontario Court of Appeal

OTHER BAD THINGS: CRIMINAL CODE

“2. I have not received and will not receive any payment or reward, or promise thereof, for the exercise of this office in a biased, corrupt or any other improper manner.”

Declaration of Office (Section 232, Municipal Act, 2001)

“This declaration” captures the essence … of the Criminal Code … which addresses the offences of breach of trust, municipal corruption, selling or purchasing an office, influencing appointments or securing secret commissions.”

“Duties of a Municipal Councillor”

Leo Longo (2006)

Criminal Code Sections 1. Frauds in the Government (s. 121) 2. Breach of Trust (s. 122) 3. Municipal Corruption (ss. 123(1)) 4. Influencing a Municipal Official (ss. 123(2))

OTHER BAD THINGS: FIDUCIARY DUTY

“The member of a council stands as trustee for the local community, and he is not so to vote or deal as to gain or appear to gain private advantage out of matters over which he, as one of the council, has supervision for the benefit of the public. The councillor should not be able to invoke the political or legislative character of his act to secure immunity from control, if the taint of personal interest sufficiently appears therein.”

L’Abbe v. Blind River (Village) Ontario Divisional Court (1904)

“It is argued, and this Court does agree, an elected official stands in a fiduciary relationship with the electorate. The Mayor was under a duty to act in the electorate’s best interest and not to permit any conflict between his duty to act and his own interest. This included his desire to obtain for himself the position of C.A.O.”

Sims v. Fratesi Mr. Justice Poupore (1996)

“The fiduciary obligations of municipal councillors is a duty of loyalty towards the electorate that includes the avoidance of conflicts of duty and interest, and the duty not to profit at the expense of the beneficiary.”

Toronto Party for a Better City v. Toronto (City)

Ontario Court of Appeal (2013)

OTHER STATUTES WHICH GOVERN BEHAVIOUR

Municipal Elections Act, 1996 Governs the conduct of elections to municipal office

Provincial Offences Act Procedural statute that prescribes the manner in which

offences, including those created under municipal by-laws, are to be administered and prosecuted.

Ontario Human Rights Code Prohibits actions that discriminate against people based on

a protected ground (age, disability, family status, race, sexual orientation, etc.) in a protected social area (accommodation, contracts, employment, goods and services etc.)

6. SOME OTHER LAW STUFF Occupational Health and Safety Act (OHSA)

o Sets out the rights and duties of all parties in the workplace; main purpose is to protect workers from health and safety hazards on the job

o Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), 2009, added definitions for “workplace violence” and “workplace harassment,” and a requirement for policies and programs to address same Policies shall be reviewed “as often as is necessary, but at

least annually” Employers shall assess the risks of workplace violence Employers shall also take every reasonable precaution to

protect a worker, if aware or ought reasonably to be aware that domestic violence likely to expose the worker to physical injury may occur in the workplace

“workplace harassment” means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome

o An employer shall prepare a policy with respect to

workplace harassment, and develop and maintain a program to implement the policy that shall,

(a) include measures and procedures for workers to report incidents of workplace harassment to the employer or supervisor,

(b) set out how the employer will investigate and deal with incidents and complaints of workplace harassment, and

(c) include any prescribed elements.

o “workplace violence” means,

a) the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker,

b) an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker,

c) a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.

o An employer shall prepare a policy with respect to workplace violence, and develop and maintain a program to implement the policy that shall,

a) include measures and procedures to control the risks identified in the required assessment as likely to expose a worker to physical injury;

b) include measures and procedures for summoning immediate assistance when workplace violence occurs or is likely to occur;

c) include measures and procedures for workers to report incidents of workplace violence to the employer or supervisor;

d) set out how the employer will investigate and deal with incidents or complaints of workplace violence; and

e) include any prescribed elements.

In Ottawa, all staff and Members of Council are required to complete the

mandatory training on the Occupational Health and Safety Act

by December 31, 2014

Accessibility for Ontarians with Disabilities Act, (AODA)

o Applies to every person or organization in the public and private sectors of the Province of Ontario

o Purpose is to benefit all Ontarians by developing, implementing and enforcing mandatory standards on accessibility in order to achieve accessibility for Ontarians with disabilities with respect to goods, services, facilities, accommodation, employment, buildings, structures and premises on or before January 1, 2025 Ontario has accessibility standards in five areas: Customer service,

Employment, Information and Communications, Transportation, and Design of Public Spaces

A person or organization to whom a standard applies shall comply with the standard within the time period set out in the standard; Regulation requires multi-year accessibility plans that are to be made public

Requires establishment of Municipal Accessibility Advisory Committees

o A majority of the members of the committee shall be people with disabilities

o The City of Ottawa’s Accessibility Advisory Committee: Total maximum membership between nine and 15 people; majority of

members are residents with disabilities; at least two members are 65 years of age or older; membership should reflect the City’s diverse population as much as practicable; membership includes one Member of Council in a liaison capacity

o The committee shall, (a) advise the council about the requirements and

implementation of accessibility standards and the preparation of accessibility reports and such other matters for which the council may seek its advice under subsection (5);

(b) review in a timely manner the site plans and drawings described in section 41 of the Planning Act that the committee selects; and

(c) perform all other functions that are specified in the regulations.

[AODA s.29(4)]

• The council shall seek advice from the committee on the accessibility for persons with disabilities to a building, structure or premises, or part of a building, structure or premises, a) that the council purchases, constructs or significantly

renovates; b) for which the council enters into a new lease; c) or that a person provides as municipal capital facilities under an

agreement entered into with the council in accordance with section 110 of the Municipal Act, 2001 [...]

[AODA s.29(5)]

In Ottawa: all staff and Members of Council are required to complete the

mandatory training on the Accessibility for Ontarians with Disabilities Act, 2005

by December 31, 2014

Emergency Management and Civic Protection Act Every municipality shall develop and implement

an emergency management program and the council of the municipality shall by by-law adopt the emergency management program – s. 2.1(1)

City of Ottawa Emergency Management By-law 2007-313,

as amended by By-law 2011-277

Every municipality shall formulate an emergency plan (reviewed annually) governing the provision of necessary services during an emergency and the procedures under and the manner in which employees of the municipality and other persons will respond to the emergency and the council of the municipality shall by by-law adopt the emergency plan – s. 3(1)

In addition to having an emergency plan, the emergency management program shall consist of: Training programs and exercises for employees of

the municipality and other persons with respect to the provisions of necessary services and the procedures to be followed in emergency response and recovery activities;

Public education on risks to public safety and on public preparedness for emergencies

MUNICIPAL DECLARATION OF EMERGENCY

The “head of council” may declare that an emergency exists in the municipality (or in any part) and my take such action and make such orders as he or she considers necessary and are not contrary to law to implement the emergency plan of the municipality and to protect property and the health, safety and welfare of the inhabitants of the emergency area. Ontario Disaster Relief Assistance Program Federal Environmental Damages Fund

The head of council or the council of a municipality may at any time declare that an emergency has terminated.

The head of council shall ensure that the Solicitor General is notified forthwith of a declaration of emergency or its termination.

The Premier of Ontario may at any time declare that an emergency has terminated

ONTARIO REGULATION 380.04 PART II: MUNICIPAL STANDARDS

Every municipality must designate an employee of the municipality or a member of the council as its emergency management program co-ordinator. S. 10(1)

Every municipality must have an emergency management program committee. S. 11(1) Function: advises Council on development and

implementation of emergency management program and conducts annual review of program

Every municipality shall have a municipal emergency control group s. 12(1) Function: directs the municipality’s response in an emergency,

including the implementation of the municipality’s emergency response plan.

Every municipality shall establish an emergency operations centre to be used by the municipal emergency control group in an emergency. S. 13(1) Committee and EOC same body in Ottawa

Every municipality shall designate an employee of the municipality as its emergency information officer. S.12(1) Chief of Corporate Communications Function: acts as the primary media and public contact for the

municipality in an emergency

PROVINCIAL DECLARATIONS OF EMERGENCY

The Lieutenant Governor in Council or the Premier, if in the Premier’s opinion the urgency of the situation requires that an order be made immediately, may by order declare that an emergency exists throughout Ontario or in any part of Ontario s. 7.01

In respect of Provincial Order during a declared emergency, the Premier may by Order:

a) Direct and control the administration, facilities and equipment of the municipality in the emergency area, and without restricting the generality of the foregoing, the exercise by the municipality of its powers and duties in the emergency area, whether under an emergency plan or otherwise, is subject to the direction and control of the Premier; and

b) Require any municipality to provide such assistance as he or she considers necessary to an emergency area or any part of the emergency area that is not within the jurisdiction of the municipality and direct and control the provision of such assistance. S. 7.0.3(2)

CIVIL LIABILITY & PROTECTION Protection from action 11 (1) No action or other proceeding lies or shall be

instituted against a member of council, an employee of a municipality . . . for any act done in good faith in the exercise or performance or the intended exercise or performance of any power or duty under this Act or an order under this Act or for neglect or default in the good faith exercise or performance of such a power or duty. Personal protection – unless acted in “bad faith” [ a

range: from intent to harm to acts or omissions “so markedly inconsistent with the relevant legislative context”]

Municipality not relieved of liability 11(3) Subsection (1) does not relieve a municipality of liability for

the acts or omissions of a member of council or an employee of the municipality referred to in subsection (1), and the municipality is liable as if subsection (1) had not been enacted and, in the case of a member of council, as if the member were an employee of the municipality Municipality will be liable for acts (torts) or omissions

(negligence) of a member of council/employees – (i.e. vicarious liability), even where acts/omissions done good faith.

MUNICIPAL COMMUNICATIONS

“With open public forums; reconnecting with volunteer groups and organizations; providing user-friendly customer service; rebuliding council staff, resident and taxpayer relationships; encouraging ideas and suggestions from the public; and using a variety of media channels to relay our message.”

Councillor Evonne Delegarde “South Dundas Council Needs to Get Better at Communicating”

Cornwall Standard-Freeholder (October 7, 2014)

A clear, concise “Communications Policy” can ensure that a municipality’s various messages are presented to the residents and key stakeholders in an effective, co-ordinated and consistent fashion.

Can include public notices, media releases, council decisions, etc.

POTENTIAL COMMUNICATION PROBLEMS?

1. Going Viral 2. C.A.S.L. 3. Negligent Misrepresentation and Defamation

1. GOING VIRAL?

“Americans killed by ISIS: 3; Americans killed by Ebola: 2; Americans killed by the Police:

500+ every year”

“It was a mistake on my part to have chosen this particular material and it is gone from my Facebook. My intent was a discussion of an important issue, not to engage in maligning anyone.

Dr. Alok Mukherjee Chair, Toronto Police Services Board

CANADIAN ANTI-SPAM LEGISLATION (CASL)

Effective July 1, 2014, this Federal Statute was to reduce online threats, protect privacy and promote business and consumer confidence in the marketplace

The general prohibition is on sending a commercial, electronic message (“CEM”) without the recipient’s consent.

“CASL does not apply to the activities of the federal, provincial and territorial governments. CASL does apply however to crown corporations, including municipal governments, when the corporation is acting in the course of any commercial activity.”

CTRC Website

Requirements for CEMs include: 1. Identification; 2. Unsubscribe mechanism; 3. Consent or permission

CASL has fines for up to $1M for individuals and $10M for an organization

(2) NEGLIGENT MISREPRESENTATION

Misleading someone into doing something by relying on your advice/comments

Elements of negligent misrepresentation: Special relationship must exist; Information provided must be untrue, inaccurate or

misleading; Official must have acted negligently in making the

representation; Must have relied in a reasonable manner upon the

information; and There must be “detrimental” reliance.

(3) DEFAMATION

“An action in defamation involves two fundamental values: freedom of expression and the right to reputation.”

Supreme Court of Canada Prud’homme v Prud’homme (2002)

COMMON LAW- TESTS

Would the statement tend to lower the person in the estimation of the right thinking members of society generally?

Would the statement tend to cause others to shun or avoid the plaintiff?

Would the words tend to expose the plaintiff to hatred, contempt or ridicule?

DEFAMATION DEFENCES

The truth; Consent; Fair Comment; Responsible Communication – Public

Interest; and Privilege –Absolute vs. Qualified

Qualified Privilege:

“[Relates to] an occasion where the person who makes a communication has an interest or duty – legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it.”

Supreme Court of Canada Hill v. Church of Scientology (1995)

Can a municipality sue in defamation? No: Montague (Township) v. Page (2006)

Halton Hills (Township) v. Kerouac (2006)

Dixon v. Powell River (City) (2009)

Can a municipality fund the costs of a defamation claim by an individual member of council? Yes: Holyday v. Toronto (City) (2009)

FOUR TIPS TO AVOID DEFAMATION ALLEGATIONS

1. “If you don’t have anything nice to say...” 2. Show – don’t tell 3. “I think/I believe/It seems or appears” 4. Never attribute someone else’s motivation

M. RICK O’CONNOR

Phone: 613-580-2424 x 21215 E-mail: [email protected]