Municipal Act 2001 Amendments and Implications for Closed Meeting Investigations

Posted: January 08, 2018
Tagged As: Closed Meeting Investigations, Legislation & Regulation

Meetings
On January 1, 2018, the definition of meeting in the Municipal Act 2001, was expanded to include paragraphs (a) and (b) below
“meeting” means any regular, special or other meeting of a council, of a local board or of a committee of either of them, where,

  • (a) a quorum of members is present, and
  • (b) members discuss or otherwise deal with any matter in a way that materially advances the business or decision-making of the council, local board or committee. (“rĂ©union”)


For Amberley Gavel’s purposes, we do not consider this a change as much as a clarification that the legislature wishes to clearly signal to municipalities and local boards that all gatherings of a quorum of a body where business or decision-making is materially advanced are meetings and that the Municipal Act and Procedure By-law provisions prevail.

We have in the past determined that quorum email discussions and informal gatherings involving a quorum may in fact be or become “meetings” for purposes of the Act, and believe that this change serves to clarify that interpretation. Members and their staff need to avoid such breaches and be sensitive to unintentional breaches by a body that can easily occur.

Open Meetings Exception Additions
Also as of January 1, 2018, several new discretionary exceptions will be available to Councils and local boards considering closing all or part of a meeting to the public.
 
They are quite technical and are as follows:
 

  • (h) information explicitly supplied in confidence to the municipality or local board by Canada, a province or territory or a Crown agency of any of them;
  • (i) a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence to the municipality or local board, which, if disclosed, could reasonably be expected to prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization;
  • (j) a trade secret or scientific, technical, commercial or financial information that belongs to the municipality or local board and has monetary value or potential monetary value; or
  • (k) a position, plan, procedure, criteria or instruction to be applied to any negotiations carried on or to be carried on by or on behalf of the municipality or local board.

 
They are worded in a similar manner, but not identically, to circumstances where refusal to disclose documents under The Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) is required. If called upon to investigate a complaint under one of these four new exceptions we will follow our past practice and review decisions and interpretations made pursuant to MFIPPA to assist our decision making.
 
But we have learned from our detailed research to date into these decisions and interpretations that they tend to be very fact-specific and require contextual analysis and objective interpretation. To that end, we anticipate that any investigation will require from the municipality detailed evidence as to why they exercised the option to exclude the public from a meeting if that decision is contested by a complainant pursuant to Section 239.
 
For example, from (h) above, in exercising discretion to exclude the public, a Council should have clear evidence that the information is “explicitly” provided in confidence.
 
Presumably, that would usually mean in written form. And a Council or local board should also satisfy itself that the person communicating that information has the authority to do so.
 
In exercising discretion under (i) a body should go through a multi step decision making process.
 
First, is the matter to be considered in closed session actually “a trade secret or scientific, technical, commercial, financial or labour relations information,” and how does the body excluding the public know that?
 
Secondly, there needs to be some evidence provided to the body that the information is being “supplied in confidence to the municipality or local board”.
 
And thirdly that the matter “if disclosed, could reasonably be expected to prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization”
 
In an investigation, Amberley Gavel would be looking for the evidence that led a body to exercise its discretion at each step of the decision making process.
 
It would not be as simple as a project proponent telling Council it has some confidential information it wishes to discuss with Council that could hurt its prospects and hence Council should hear the matter in closed session.
 
We would probably look for evidence that senior municipal staff or the municipality’s solicitor reviewed the matter in advance and provided advice on procedure to Council as a result of their research. The matter would in all likelihood be too complex for the body to attempt to make a decision on using this exception with no work being done beforehand.
 
Using paragraph (j) a trade secret or scientific, technical, commercial or financial information that belongs to the municipality or local board and has monetary value or potential monetary value would similarly require some analysis in advance.  To have monetary or potential monetary value it would have to be information that could be sold or exchanged for cash or something else of value. This section could not be used to consider embarrassing financial information, for example. The demonstration of actual or potential monetary value would be key to any investigation.
 
The final exception added, at first reading, seems to be very broad in what it might allow to be discussed in the absence of the public. Councils and local boards are; however, cautioned not to consider this as a catch-all.
 
 It says that discretion to exclude the public may be exercised where a body intends to consider (k) a position, plan, procedure, criteria or instruction to be applied to any negotiations carried on or to be carried on by or on behalf of the municipality or local board.

In an investigation we would look to see if there actually was discussion of, a position, plan, procedure, criteria or instruction, and secondly if it was clear that the discussion related to the application of such to negotiations carried on or to be carried on...

We have determined in past investigations that the exclusion of the public permitted under the Municipal Act cannot be used to shield all discussion on a matter from public scrutiny, but that wherever possible that discussion on a matter should be bifurcated to meet the principle of transparency embodied in the Municipal Act while not impairing the position of the municipality or another party or parties.

If one of the other exceptions in the Municipal Act, paragraphs (a) to (g) is a better fit, then we would encourage municipalities to use that exception rather than the general approach in (k).

And, in every case, we remind municipalities and local boards when going into a closed session, it is incumbent upon them to follow the requirement that it pass a resolution that discloses   the fact of the holding of the closed meeting and the general nature of the matter to be considered at the closed meeting pursuant to Section 239(4) (a) of the Municipal Act.

Councils and local boards should be mindful of what the Supreme Court said in London vs. RSJ Holdings:

“Municipal law was 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 decisions 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 deference.”

Conclusions
Councils and local boards should be cautious when exercising their discretion to exclude the public under Section 239 of the Municipal Act 2001, particularly the January 1, 2018 additions. They are not as simple, in our opinion, as a quick reading might imply.

In addition Councils and local boards also need to continue to be wary of gatherings or communications that meet the description of a meeting under the Act, intentional or not.

Finally, municipal staff should review Section 238 again to refresh their understanding of what a local board is for purposes of Section 239; and review their procedure by-laws for consistency with the amendments above.
 
Amberley Gavel Ltd
December 2017


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