macphail
03-01-2006, 09:19 PM
A link to the case can be found at the following:
http://www.ontariocourts.on.ca/decisions/2005/november/C43109.htm (http://www.ontariocourts.on.ca/decisions/2005/november/C43109.htm)
In a case that could have bearing on the current appeal launched by a local citizen over the closed meeting discussion to rename Kingston Market Square, this case gives the first judicial insight into how and when a closed door meeting can occur.
(The following is a somewhat condenced version of the case comment found at http://www.amcto.com/wb3/db2file.asp?fileid=13397):
In November 2002, RSJ sought permission to demolish an existing structure in order to pave the way for the building of a fourplex. However, the City of London didn't respond to the various development applications.
Fast forward to 2004 when the municipality passes an interim control by-law which limits development in the area of RSJ's property for a period of one year. Prior to the passing of this by-law, Council, sitting as Council of the Whole, met in closed session to consider the planning report on the interim control by-law, as well as a report by the City Solicitor. When the open session resumed, the interim control by-law was introduced and passed by Council without debate.
When RSJ first sought to have the by-law quashed, the judge ruled that the closed meeting was in accordance with Section 239(2)(e) of the Municipal Act, 2001.
The Ontario Court of Appeal allowed RSJ's appeal and quashed the interim control by-law. With respect to the legislative framework in Section 239(1) and (2), the appellate court noted that “it seems clear that the purpose of these provisions is to ensure that, in general, municipal authority is exercised openly.” The court also found that Section 239(2)(e) permits a meeting to be closed to the public where “the subject matter being considered” is litigation or potential litigation. After reviewing the relevant facts of this particular case, the Court of Appeal concluded as follows:
We observe that where the subject matter under consideration is an interim control bylaw, it cannot be said that the subject matter under consideration is potential litigation simply because there is a statutory right of appeal by a person affected by the interim control by-law or because the interim control by-law may be subject to a motion to quash. The fact that there might be, or even inevitably would be, litigation arising from the interim control by-law does not make the “subject matter under consideration” potential litigation.
In an alternative argument, the City submitted that it was also open to the motion judge to find that the subject matter under consideration fell within s. 239(2)(f) or (g) of the Act, which relate to “advice that is subject to solicitor-client privilege”, including communications necessary for that purpose; and/or “a matter in respect of which a council…may hold a closed meeting under another Act”.
In rejecting this submission, the Ontario Court of Appeal gave short shrift to the City’s legal arguments. On the one hand, the court reiterated its position that the closed session of Council was primarily about enacting an interim control by-law:
A by-law, including an interim control by-law, is a type of subordinate legislation. It is not advice protected by privilege. The fact that the City solicitor supplemented the [planning] report with his own report does not change the fact. The solicitor’s report may have been privileged and the Committee of the Whole may have been entitled to have discussed the solicitor’s report in closed session, but appending a solicitor’s report to other documents, such as the [planning] report, does not operate to cloak all of the documents with privilege.
The effects of this recent appellate ruling should cause municipal clerks and solicitors, as well as councils across Ontario, to pause and appreciate the following:
(1) The Ontario Court of Appeal has clearly enunciated its expectations that, “[i]n 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.”
(2) As a result, municipal staff and councillors should take care to ensure that the real “subject matter being considered” in any closed session fits within the seven discretionary exceptions set out in s. 239(2). This caution is especially true with respect to the so-called “litigation” exception since neither “a statutory right of appeal” nor “the fact that there might be, or even inevitably would be, litigation arising from a council’s actions makes “the ‘subject matter under consideration’ potential litigation”.
Cheers, Derek
http://www.ontariocourts.on.ca/decisions/2005/november/C43109.htm (http://www.ontariocourts.on.ca/decisions/2005/november/C43109.htm)
In a case that could have bearing on the current appeal launched by a local citizen over the closed meeting discussion to rename Kingston Market Square, this case gives the first judicial insight into how and when a closed door meeting can occur.
(The following is a somewhat condenced version of the case comment found at http://www.amcto.com/wb3/db2file.asp?fileid=13397):
In November 2002, RSJ sought permission to demolish an existing structure in order to pave the way for the building of a fourplex. However, the City of London didn't respond to the various development applications.
Fast forward to 2004 when the municipality passes an interim control by-law which limits development in the area of RSJ's property for a period of one year. Prior to the passing of this by-law, Council, sitting as Council of the Whole, met in closed session to consider the planning report on the interim control by-law, as well as a report by the City Solicitor. When the open session resumed, the interim control by-law was introduced and passed by Council without debate.
When RSJ first sought to have the by-law quashed, the judge ruled that the closed meeting was in accordance with Section 239(2)(e) of the Municipal Act, 2001.
The Ontario Court of Appeal allowed RSJ's appeal and quashed the interim control by-law. With respect to the legislative framework in Section 239(1) and (2), the appellate court noted that “it seems clear that the purpose of these provisions is to ensure that, in general, municipal authority is exercised openly.” The court also found that Section 239(2)(e) permits a meeting to be closed to the public where “the subject matter being considered” is litigation or potential litigation. After reviewing the relevant facts of this particular case, the Court of Appeal concluded as follows:
We observe that where the subject matter under consideration is an interim control bylaw, it cannot be said that the subject matter under consideration is potential litigation simply because there is a statutory right of appeal by a person affected by the interim control by-law or because the interim control by-law may be subject to a motion to quash. The fact that there might be, or even inevitably would be, litigation arising from the interim control by-law does not make the “subject matter under consideration” potential litigation.
In an alternative argument, the City submitted that it was also open to the motion judge to find that the subject matter under consideration fell within s. 239(2)(f) or (g) of the Act, which relate to “advice that is subject to solicitor-client privilege”, including communications necessary for that purpose; and/or “a matter in respect of which a council…may hold a closed meeting under another Act”.
In rejecting this submission, the Ontario Court of Appeal gave short shrift to the City’s legal arguments. On the one hand, the court reiterated its position that the closed session of Council was primarily about enacting an interim control by-law:
A by-law, including an interim control by-law, is a type of subordinate legislation. It is not advice protected by privilege. The fact that the City solicitor supplemented the [planning] report with his own report does not change the fact. The solicitor’s report may have been privileged and the Committee of the Whole may have been entitled to have discussed the solicitor’s report in closed session, but appending a solicitor’s report to other documents, such as the [planning] report, does not operate to cloak all of the documents with privilege.
The effects of this recent appellate ruling should cause municipal clerks and solicitors, as well as councils across Ontario, to pause and appreciate the following:
(1) The Ontario Court of Appeal has clearly enunciated its expectations that, “[i]n 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.”
(2) As a result, municipal staff and councillors should take care to ensure that the real “subject matter being considered” in any closed session fits within the seven discretionary exceptions set out in s. 239(2). This caution is especially true with respect to the so-called “litigation” exception since neither “a statutory right of appeal” nor “the fact that there might be, or even inevitably would be, litigation arising from a council’s actions makes “the ‘subject matter under consideration’ potential litigation”.
Cheers, Derek