COVID-19 – The latest from our Municipal Group (public meetings, etc.) and Corporate Group (force majeure clauses), among others

COVID-19 – The latest from our Municipal Group (public meetings, etc.) and Corporate Group (force majeure clauses), among others

James L. McDonald
Posted March 19, 2020 Category: Businesses
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Cunningham Swan’s staff and lawyers are equipped to work remotely and we remain able to serve your needs with continued service should a physical office closure become necessary.  We are limiting in-office meetings.    

Can Municipalities Continue to Have Public Meetings During the COVID Crisis?

The Provincial and Federal government’s COVID 19 management policy is focused around social distancing and limiting gatherings of groups in excess of 50 people.  Many experts say that 50 is still too many. 

This impacts municipalities who can only govern by by-law.  By-laws may only be passed at a meeting open to the public.  In addition, Planning Act applications require public meetings. This raises fundamental questions about how local government can continue to function while still taking the necessary steps to avoid the further spread of COVID 19.

Council Meetings

A number of options are available for general municipal governance:

  • Delegate authority to staff where possible;
  • Exercise emergency powers where a state of emergency is declared under applicable Emergency Management Plans – which includes delegated authority;
  • Continue to hold Council meetings.

Section 23.1 of the Municipal Act authorizes a municipality to delegate certain of its powers.  Legislative and quasi-legislative powers may not be delegated and almost no authority under the Planning Act can be delegated. Financial powers may also not be delegated.  Section 23.3 lists what is not subject to delegation.

Delegation can assist in ensuring that administrative functions continue to be performed while Council meetings are not being held.

The Emergency Management and Civil Protection Act requires emergency plans for each municipality.  Within those plans the municipal response to an emergency will be set out.  For each municipality your specific plan will dictate what role staff and Council have in the emergency. 

It is important to understand that the powers of a municipality under this Act are limited and it does not authorize any action that would be contrary to law – therefore a municipality cannot use this legislation to exempt itself from the open meeting requirements or to delegate powers that the Municipal Act prohibits.

For certain decisions, there simply is no legal authority to delegate.  There may also be sound reasons to continue to hold Council meetings, but still attempt to protect the public and limit the spread.  The question is how can a Council meeting be open to the public without putting the public at risk?

Section 239 of the Municipal Act provides that all meetings shall be “open to the public”.  The listed exceptions in s. 239(2) do not permit a closed meeting for “normal” council business, and s. 239(5) would prohibit a vote at such a meeting in any event.

What then, is “open to the public”?  The case law is clear that in order to be “open to the public” the public must have the right to attend.  However, the municipality could encourage the public not to attend for their own safety.  It could also impose safety precautions, screening and social distancing for anyone who does attend.

More fundamentally, the requirement is intended to ensure transparency and accountability – the intent is to ensure that the public are able to monitor what their elected representatives are doing.  There is no legislative obligation to allow the public to participate in the meeting.

In these unprecedented times, and in order to allow municipal government to continue to function and serve the public, it is a reasonable argument that a meeting can be “open to the public” if it is advertised and the public have the ability to watch the full proceeding on a live-stream feed.  In our opinion this “virtual attendance” would likely satisfy the intent of the legislation in the circumstances.  Absent a public health crisis, our opinion would be different. 

There are risks to this course of action; any decision made at an illegal closed meeting is invalid.

In order to reduce the risk of an invalid meeting, municipalities should ensure full disclosure in advertising, make the live-stream available in real time and on an archive on its website.  The municipality should also consider allowing the press to attend in person.  A hybrid would be to take the live-stream approach and also encourage people not to attend, but not prohibit their attendance.  If any person is allowed to attend there should be no argument that the meeting is illegal – whether this will achieve the goal of reducing the spread of the virus is a risk management exercise.

On March 16, Thomson Manitoba held a meeting that was closed to the public that breached the Province’s Municipal Act requirements for open meetings.  Nevertheless, the meeting was deemed to be a valid public meeting by the Ministry as it was live-streamed and 2 members of the local press were in attendance.  While this is not a court decision that can be relied on, it is evidence that municipal government must carry on, and to do that innovative thinking is required.

Public Meetings under the Planning Act

Options are more limited for decisions under the Planning Act.  The authority to delegate does not include delegation of most planning decisions.  In most instances, municipalities have the option of delaying a decision and risking an appeal to LPAT for failure to make a decision in the legislated timeframe or holding a public meeting.  We are advised that the Ministry of Municipal Affairs is considering relaxing the legislated decision-making deadlines – but no decision had been made to date.

If the deadlines are not relaxed, developers may commence an appeal for failure to make a decision.  Since the LPAT has cancelled all current hearings (until April 3 presently) it is questionable whether initiating an appeal would actually result in a quicker decision – but it is possible.

For economic development reasons, it may simply be in the best interests of the municipality to continue to grant approvals.  But how can this be accomplished safely when public meetings are part of the legislated process?

The comments above about live-stream and recording meetings are not effective under the Planning Act.  The Planning Act has very specific requirements for public meetings and generally requires a public meeting (and possibly an open house) for Official Plans, amendments to Official Plans, Zoning By-laws, amendments to Zoning By-laws, Plans of subdivision, and minor variances.

The solution (which is not perfect) is to advertise a public meeting and encourage people to not attend (but not prohibit their attendance) and instead make written comments.  Provide a live-stream and archive video recording of the meeting and extend the deadline to comment in writing so that people may make informed comments and be in turn informed about the comments made.  The developer should also be able to respond to comments made – perhaps using an on-line forum so that there is a full record of the written discourse.

There is no way to avoid the public meeting requirement in planning matters.  The language of the statute does not speak to a meeting “open to the public” as in the Municipal Act, it is a “public meeting” that contemplates input from the public.  Therefore, anyone who wants to attend must have that opportunity.  We recommend that the venue be physically large enough that people can practice social distancing properly – which may require holding the meeting in a venue larger than the normal Council chambers.

Other Considerations

We cannot lose sight of the need to protect Council members and staff as well.  If continuing business as usual will place staff at risk the municipality will need to revisit its practices.  In order to limit Council member exposure, Council can consider passing a virtual attendance by-law pursuant to s 238(3.1) of the Act.  This allows Council to pass a by-law (at a public meeting) to allow members to participate virtually.  Council must still have a quorum physically present at the meeting, but other members can participate virtually in accordance with the by-law.

Another matter that needs to be considered is that for Ontario Heritage Act applications s. 33 and 34 provide that Council has 90 days to decide on an application to alter or demolish a designated structure.  If Council fails to decide within 90 days an application for alteration or demolition will be DEEMED to be approved.  Staff need to pay particular attention to these applications and bring them to Council to avoid unintended consequences. 

There are transition provisions and other provisions that need to be considered, but the purpose of this article is not to provide a detailed assessment of the Ontario Heritage Act, it is intended to raise awareness that inaction, even in the face of the COVID emergency, has consequences that need to be attended to.

The Ontario Heritage Act does allow for delegation of the power to consent to alterations under s. 33(15).  This must be done, of course, at a public meeting and is only possible where a municipal heritage committee has been established and where the committee is consulted prior to delegating the power.

Conclusion

There are no complete answers to many questions in these unprecedented times.  All municipalities can do is keep the public interest and public safety in mind and try to proactively make decisions to advance the public good.  Hopefully this article will provide some assistance as municipal governments attempt to manage their many competing interests.

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James L. McDonald
Posted March 19, 2020 Category: Businesses

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