The Ontario Ombudsman issued a report recently, wherein he found the Election Compliance Audit Committee (“Committee”) of the City of Hamilton to be a local board of the municipality and therefore subject to the open meeting requirements of the Municipal Act, 2001, S.O. 2001, C. 25 (“Municipal Act”).
The Ombudsman also found that the Committee held a closed meeting contrary to the open meeting requirements of the Municipal Act when it met in private to deliberate on applications brought under the Municipal Elections Act, 1996, S.O. 1996, c. 32 (“Municipal Elections Act”) for compliance audits of municipal candidates’ campaign finances. Important for our discussion is the assessment of why, a Committee that operates as a quasi-judicial administrative tribunal governed by its establishing legislation (Municipal Elections Act) and governing legislation (Statutory Powers Procedure Act, R.S.O. 1990, C. S. 22 (“SPPA”)), would be considered a “local board” of the municipality and therefore required to deliberate in an open forum. It also raises many practical questions, including:
- Will all municipal adjudicative bodies not listed in the defined term “local board” under the Municipal Act run the risk of being found to be a local board by the Ombudsman and therefore subject to the open meeting requirements of the Municipal Act?
- Are the written decisions of such administrative tribunals also to be drafted in open forum?
- For decisions subject to appeal, will the content of the minutes of such “meetings” or comments from committee members during open deliberations be subject to the content of the appeal?
- Will members feel free to comment, debate and deliberate in an open forum?
- If a perceived negative discussion ensues during deliberations regarding an individual subject of the hearing, could this information expose the Committee to unforeseen scrutiny? Could a Committee member or the municipality be subject to liability regarding comments made during deliberations?
The Committee, which is established by the City as required by the Municipal Elections Act, considers and decides all applications filed by an elector seeking a compliance audit of a municipal candidate’s election campaign finances. Its decisions may be appealed to the Superior Court of Justice. The regular meetings of the Committee, as required by the Municipal Elections Act, are in fact open to the public. The only time a session has been conducted in private, is when the Committee meets to deliberate. Even so, the Ombudsman asserts that if Parliament intended for the Committee to have the ability to deliberate in private, it must expressly state this within the establishing legislation. The City asserts that this is incorrect and cites an example: section 135 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 requires court proceedings to be open to the public but does not specifically provide that a Judge has the power to deliberate in private – this is a right protected at common law that has also been afforded to administrative tribunals.
The Ombudsman found that the Committee was a local board on the following basis:
- it is established by municipal council;
- it is not responsible to the provincial government for its decisions;
- its members are appointed by council;
- its terms of references are drafted by the clerk of the municipality who also provides administrative support to the Committee;
- the municipality pays all of its costs of operation; and
- its decisions are not reviewable by council (making it autonomous).
What is most puzzling about these findings is that all specified actions by the municipality are statutorily required by the Province, through the Municipal Elections Act. In other words, municipalities have no choice but to establish the Committee, appoint its members and ensure it operates smoothly and in accordance with the legislation. In addition, Committee members may not be employees or officers of the City, members of Council, or any persons who are candidates or have a connection with a candidate in the election for which the Committee has been established – ensuring even greater independence from the municipality. One may argue that the municipality is, in essence, the “middle man” of the Province – to make sure the Committee and process are in place, but with no control over the outcome of any resulting decisions of the Committee.
The City of Hamilton has since applied to the Divisional Court for a judicial review of the matter, seeking a declatory order determining whether the Ombudsman has jurisdiction to investigate if the City’s statutory adjudicate tribunals have complied with the open meeting requirements of the Municipal Act and in particular, a tribunal’s adjudicative deliberations. The City seeks an order quashing the Ombudsman’s report and an order of prohibition with respect to any new closed meeting investigations. The Committee’s position is that it is not subject to the section 239 requirements for several reasons, including:
- it is not a local board of the City
- it is not “carrying on the affairs of the municipality”;
- there is no substantive control by or connection to the City;
- it is a quasi-judicial administrative tribunal established by the Municipal Elections Act and governed by the SPPA;
- while its meetings are in fact open to the public as required by the Municipal Elections Act, its right to deliberative secrecy is protected at common law which negates the necessity for Parliament to add specific language permitting such a right; and
- deliberative secrecy during deliberations is paramount to protecting the effectiveness of its quasi-judicial process.
Until the Court rules on this application, which is set to be heard in June, the City indicates that its Committee and administrative tribunals will continue operating as they have, which includes deliberating in private where applicable. We will be following this decision due to the very nature of its potential impact on municipalities across Ontario. Stay tuned!