CITATION: City of Hamilton v. Ombudsman of Ontario, 2017 ONSC 4865

DIVISIONAL COURT FILE NO.: DC-16-772 DATE: 20170828

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

MATHESON, TRIMBLE AND SHEARD JJ.

BETWEEN:

CITY OF HAMILTON Applicant

– and –

OMBUDSMAN OF ONTARIO Respondent

COUNSEL: Brydena M. MacNeil, for the Applicant Robert A. Centa, for the Respondent

HEARD at Hamilton: June 9, 2017, followed by written submissions

W. MATHESON J.

[1] This is an application seeking a determination of the jurisdiction of the Ombudsman of Ontario under s. 14(5) of the Ombudsman Act, R.S.O. 1990, c. O.6, as well as an application for judicial review arising from a Report of the Ombudsman dated July 2016.

[2] The City of Hamilton primarily seeks a declaration that the Ombudsman’s jurisdiction to investigate compliance with the open meeting requirements of the Municipal Act, 2001, S.O. 2011, c. 25 (the “Municipal Act”) does not extend to an Election Compliance Audit Committee or a Property Standards Committee, each of which holds public hearings but deliberates and prepares reasons for decision in private. In brief, the City’s main submission is that these and other adjudicative tribunals that make quasi-judicial decisions are not “local boards,” a prerequisite to the Ombudsman’s jurisdiction.

[3] For the reasons set out below, I conclude that the Election Compliance Audit Committee and the Property Standards Committee are not “local boards” and there therefore should be a declaration that the Ombudsman does not have jurisdiction to investigate them under the above regime. However, I also conclude that there should not be declaratory relief extending beyond those two Committees and there should be no relief under that part of this application that is an application for judicial review.

Section 14(5) application

[4] The Ombudsman Act provides for the determination of the Ombudsman’s jurisdiction on this application under s. 14(5), as follows:

If any question arises whether the Ombudsman has jurisdiction to investigate any case or class of cases under this Act, the Ombudsman or any person who is directly affected may apply to the Divisional Court for a declaratory order determining the question.

[5] The City of Hamilton proceeds under this section. The portion of this application that is an application for judicial review is dealt with separately below.

Basis for claimed jurisdiction

[6] The Ombudsman relies upon s. 14.1 of the Ombudsman Act and s. 239.1 of the Municipal Act for its jurisdiction in this case.

[7] Section 14.1 relates to the Ombudsman’s role as an investigator into alleged non-compliance with the open meeting requirements in s. 239 of the Municipal Act. Section 239 of the Municipal Act requires that all meetings of a municipal council, local board, or committee of either of them, be open to the public, with limited exceptions. In turn, s. 239.1 of the Municipal Act provides for the right to request an investigation into a closed meeting. Section 239.1 provides as follows, in relevant part:

A person may request that an investigation of whether a municipality or local board has complied with section 239 or a procedure by-law under subsection 238 (2) in respect of a meeting or part of a meeting that was closed to the public be undertaken,

(b) by the Ombudsman appointed under the Ombudsman Act, if the municipality has not appointed an investigator referred to in subsection 239.2 (1).… [Emphasis added.]

[8] Section 239.1 provides that these investigations are conducted by the Ombudsman unless the City of Hamilton has appointed its own investigator. The City has not done so.

[9] In parallel to the above provision in the Municipal Act, s. 14.1(3) of the Ombudsman Act also provides that the Ombudsman may investigate where a person has requested an investigation under s. 239.1 of the Municipal Act. Section 14.1(3) provides as follows, in relevant part:

If a person makes a request under clause 239.1 (b) of the Municipal Act …, the Ombudsman may … investigate,

(a) whether a municipality or local board of a municipality has complied with section 239 of the Municipal Act or a procedure by-law under subsection 238 (2) of that Act in respect of a meeting or part of a meeting that was closed to the public;… [Emphasis added.]

[10] As set out in the above provisions, one of the threshold requirements for the Ombudsman’s jurisdiction to investigate is that the entity at issue must be a “municipality or local board of a municipality.” Here, the main issue is whether an Election Compliance Audit Committee or a Property Standards Committee is a “local board of a municipality.” The other prerequisite at issue in this case is the requirement that the step not taken in public must be “a meeting or part of a meeting.” These two requirements appear in both the Ombudsman Act and the Municipal Act.

Committees at issue

[11] In this application, the City seeks broad relief regarding what it describes as all “statutory adjudicative tribunals performing quasi-judicial functions.” However, the factual record before us relates only to the City’s Election Compliance Audit Committee and Property Standards Committee.

[12] These two Committees conduct meetings or hearings in public, but they deliberate and prepare their reasons for decision in private. The City submits that neither Committee is a “local board of a municipality,” nor are their deliberations “meetings” under the above sections. In turn, the City submits that the Ombudsman has no jurisdiction to investigate. The Ombudsman submits that these Committees are “local boards,” their deliberations are “meetings” and, therefore, the Ombudsman has jurisdiction to investigate.

[13] There has been one completed investigation by the Ombudsman regarding the Election Compliance Audit Committee for the City of Hamilton, and another is underway. An investigation is also underway regarding the Property Standards Committee for the City of Hamilton.

[14] The issues before us begin with the Ombudsman Act and the Municipal Act and also include the legislative regime under which the Election Compliance Audit Committee and the Property Standards Committee are mandated. For the Election Compliance Audit Committee, the relevant legislation is the Municipal Elections Act, 1996, S.O. 1996, c. 32, Sched. (the “Municipal Elections Act”).[^1] For the Property Standards Committee, the relevant legislation is the Building Code Act, 1992, S.O. 1992, c. 23 (the “Building Code Act”).

Election Compliance Audit Committee: Municipal Elections Act

[15] The Municipal Elections Act legislates numerous aspects of municipal elections, including limitations on election expenses and contributions received by candidates. Section 88.37(1) of the Act provides that a municipal council or local board shall establish a compliance audit committee (the “Election Compliance Audit Committee”) for the purposes of the Municipal Elections Act. The City of Hamilton has done so.

[16] The mandate of the Election Compliance Audit Committee is to consider and decide requests for compliance audits of candidates’ campaign finances, and to address compliance audit reports where applicable. The Committee performs a quasi-judicial function: Chapman v. Hamilton (City), 2005 ONCJ 157, 9 M.P.L.R. (4th) 146, at para. 7.

[17] Prior to 2009, requests for compliance audits could be and were decided by municipal councils: Lancaster v. St. Catharines (City), 2012 ONSC 5629, 3 M.P.L.R. (5th) 117, at para. 31. In 2009, the Legislature removed the function from municipal council, and moved it to this impartial tribunal. Municipal council members are not permitted to be on the Committee. Under s. 88.37(2) of the Municipal Elections Act, the Committee must have between three and seven members and must not include any members of council, employees of the City, officers of the municipality, candidates or registered third parties. The City has implemented an application process for positions on the Committee, and seeks people with relevant experience. The Committee currently has four members, all of whom have accounting backgrounds. These are volunteer positions.

[18] Section 88.33 of the Municipal Elections Act provides that an elector who believes on reasonable grounds that a candidate has contravened a campaign finance provision of the Act may apply for a compliance audit of a candidate’s election campaign finances. In brief, s. 88.33 includes the following steps regarding a request for a compliance audit:

(i) an elector may apply for a compliance audit, within a certain time frame (s. 88.33(3));

(ii) the application is forwarded to the applicable Election Compliance Audit Committee (s. 88.33(4));

(iii) within 30 days of receiving the application, the Committee “shall consider the application and decide whether it should be granted or rejected” (s. 88.33(7));

(iv) the decision of the Committee and brief written reasons must be given to the applicant and the candidate, among others (s. 88.33(8));

(v) the Committee’s decision may be appealed to the Superior Court of Justice (s. 88.33(9));

(vi) if the Committee decides to grant an application, it must appoint an auditor to conduct a compliance audit of the candidate’s election campaign finances (s. 88.33(10));

(vii) when an auditor is appointed, a further process is provided for completing and reporting on the audit (s. 88.33(12)-(15));

(viii) if the auditor’s report concludes that the candidate appeared to have contravened the election campaign finance provisions of the Act, the Committee must consider whether to commence a legal proceeding against the candidate for the apparent contravention (s. 88.33(17)); and,

(ix) notice of the Committee’s decision about commencing litigation, together with brief written reasons, must be given (s. 88.33(18)).

[19] The City provides administrative support to the Committee including the use of facilities for the hearing, the use of its website and assistance from the office of the City Clerk, and bears the costs of the Committee.

[20] Section 88.33(5) requires that the meetings of the Election Compliance Audit Committee under s. 88.33 be open to the public and that reasonable notice be given to the candidate, the applicant and the public. The administrative practices and procedures established for the Committee pursuant to s. 88.37(6) also provide for notice of a public meeting at which both the applicant and the candidate may make presentations and answer questions posed by the Committee about an application. The Committee’s procedure further provides that, after the presentations, the Committee “may retire to deliberate before rendering its decision.”

[21] In accordance with the above provisions, the Election Compliance Audit Committee holds public hearings after giving appropriate notice. After hearing the presentations of the parties at the public hearing, the Committee usually reserves its decision and deliberates in private in order to come to a decision. It then provides its written reasons for decision, which are also posted on the City’s website.

[22] In October 2015, the Ombudsman received a complaint about the City of Hamilton’s Election Compliance Audit Committee holding its deliberations in private. On July 13, 2015, the Committee had held a public hearing at which it received submissions and evidence regarding a number of applications seeking compliance audits. The hearing was open to the public. Notice was provided on the City’s website. Minutes were taken. As shown in the minutes, the Committee reserved its decisions. The Committee then met privately to deliberate on July 15, 2015. During the deliberations, the Committee reviewed financial documentation and the parties’ submissions, discussed points raised in the submissions and came to decisions. The decisions were then formatted by staff into written decisions. While legal staff was present during the deliberations, no legal advice was given. The deliberations lasted about three hours. Written decisions were then released, including reasons for each decision.

[23] A complaint about these private deliberations gave rise to an investigation by the Ombudsman, culminating in a report dated July 2016 (the “Report”). The City cooperated in the investigation and attempted, unsuccessfully, to persuade the Ombudsman that the Ombudsman had no jurisdiction to investigate the complaint.

[24] In his Report, the Ombudsman gave his opinion that the Election Compliance Audit Committee was a “local board” under the Municipal Act and had contravened the open meeting requirements by conducting its deliberations in private. In turn, the Ombudsman made non-binding recommendations to implement changes giving effect to his opinion.

[25] As part of his investigation, the Ombudsman conducted research into the meeting practices of other Election Compliance Audit Committees in Ontario. Of those surveyed, practices varied. Many of the Committees surveyed conducted their deliberations in public except when legal advice was being given. The open meeting requirement in s. 239 of the Municipal Act provides an exception for legal advice. However, some Committees reserved their decisions and deliberated in private. Not surprisingly, the Ombudsman did not do a comprehensive survey of the Committees for the over 400 municipalities in Ontario.

Property Standards Committee: Building Code Act

[26] Property Standards Committees hear appeals from orders made by municipal officers against property owners or occupants arising from non-compliance with property standards by-laws. The appeals are essentially hearings de novo, with parties presenting opening and closing statements, calling evidence from witnesses that is taken under oath, introducing documentary evidence and making argument.

[27] These appeals arise from the property standards regime in the Building Code Act. Section 15.1(3) of that Act provides that a municipal council may pass a property standards by-law including both standards for the maintenance and occupancy of property and requirements to conform to those standards. The City of Hamilton has done so. In turn, s. 15.6 (1) of that Act requires that the by-law provide for the establishment of a committee composed of no fewer than three members, as counsel considers advisable and on such conditions as the by-law may establish (the “Property Standards Committee”). Under the City’s by-law, the Property Standards Committee must have five members, who are residents of or property owners in the City of Hamilton. These are volunteer positions.

[28] The Building Code Act provides for the issuance of compliance orders and for appeals of compliance orders. Under s. 15.2(2) of that Act, property standards orders may be made by municipal officers against property owners or occupants, requiring repairs or demolition. Orders include the time for complying with the terms and conditions of the order and give notice that, if the particularized repair or clearance is not carried out within that time, the municipality may carry out the repair or clearance at the owner’s expense. Under s. 15.3(1) of the Building Code Act, an owner or occupant who has been served with a property standards order made by a municipal officer and is not satisfied with its terms and conditions may appeal the order to the applicable Property Standards Committee.

[29] Section 15.3 (3) provides that the Property Standards Committee “shall hear” all appeals, and under s. 15.3 (3.1) the Committee has broad powers to confirm, modify or rescind the order in question and extend the time for compliance.

[30] There is a right of appeal from the Committee’s decision to the Superior Court of Justice (s. 15.3(4)). If an order of a municipal officer is not appealed, or the appeal confirms the order, the order is “final and binding” on the owner or occupant.

[31] The Property Standards Committee for the City of Hamilton proceeds generally as follows:

(i) the Committee meets when required and, at that time, hears and decides any appeals that have been filed;

(ii) notice of the Committee meetings is posted on the City’s website and the meetings are open to the public;

(iii) at the hearing of an appeal, the parties present their cases by giving opening and closing statements, calling evidence from witnesses (taken under oath), filing documentary evidence and presenting arguments;

(iv) members of the Committee may ask questions, including of witnesses, during the hearing;

(v) when the hearing has concluded, the Committee members usually retire to an ante room to deliberate in private in order to reach a decision; and,

(vi) the Committee provides reasons for each decision in writing, though it may also choose to deliver an oral decision at a meeting.

[32] The City provides administrative support to the Property Standards Committee including an appeal form, the use of facilities for the hearing, the use of its website and assistance from the office of the City Clerk regarding minutes, and the City charges an appellant an appeal fee.

[33] Under ss. 15.6(8)(9) of the Building Code Act, the Property Standards Committee may adopt its own rules of procedure, subject to the requirement that it must give notice of the hearing of an appeal. The Property Standards Committee for the City of Hamilton has published an outline of its “Appeal Process” and made a reconsideration rule. With respect to its deliberations, the Appeal Process provides that the Property Standards Committee may retire to deliberate in the absence of the public. In keeping with this statement, the Committee does retire and deliberate in private.

Analysis

[34] The issues on this application are as follows:

(1) whether the Ombudsman has jurisdiction to investigate these Committees, and more specifically:

(a) whether either the Election Compliance Audit Committee or the Property Standards Committee is a “local board of a municipality” under the Ombudsman Act and the Municipal Act; and,

(b) if so, whether their deliberations are “a meeting or part of a meeting”;

(2) whether a declaration regarding jurisdiction should be made more generally, regarding all “statutory adjudicative tribunals performing quasi-judicial functions,” as requested by the City; and,

(3) whether any relief should be granted under the Judicial Review Procedure Act.

[35] This application requires the interpretation of a number of statutes. The jurisdictional question begins with the Ombudsman Act and the Municipal Act, and then brings in other relevant legislation. The proper approach to statutory interpretation is well-accepted. The words of an Act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature: Rizzo & Rizzo Shoes Ltd. (Re.), 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 21. Further, interpretations favouring harmony between various statutes enacted by the same government should prevail, especially when they relate to the same subject matter: R. Sullivan, Statutory Interpretation (3rd ed. 2016), at p. 179.

Whether a “local board”

[36] The main focus of this application is the definition of “local board” in the Municipal Act, which has been adopted by the Ombudsman Act. For the Ombudsman to have jurisdiction to investigate, each of the Election Compliance Audit Committee and the Property Standards Committee must be a “local board.”

[37] There is a statutory definition of “local board” in the Municipal Act, which is awkwardly incorporated into the Ombudsman Act in relation to the s. 239 investigative role. Section 14.1(2)(a) of the Ombudsman Act adopts the definition in s. 238(1) of the Municipal Act. However, section 238(1) provides only as follows:

In this section and in sections 239 to 239.2 … “local board” does not include police services boards or public library boards. …

[38] The parties agree, and logic demands, that this section be read along with the definition of “local board” found in s. 1(1) of the Municipal Act, which provides as follows:

“local board” means a municipal service board, transportation commission, public library board, board of health, police services board, planning board, or any other board, commission, committee, body or local authority established or exercising any power under any Act with respect to the affairs or purposes of one or more municipalities, excluding a school board and a conservation authority; [Emphasis added.]

[39] Neither an Election Compliance Audit Committee nor a Property Standards Committee is specifically listed as a local board under this definition. The issue is whether either or both Committees fall within the more general language in the definition.

[40] The regime that applies to “local boards” under the Municipal Act is not limited to the open meeting requirements in s. 239. For example, under s. 270, local boards are required to adopt and maintain policies with respect to the sale and other disposition of land, hiring of employees and procurement of goods. Section 270 excludes a number of entities from the definition of “local board”, as set out in s. 269(1). Other examples are found in ss. 10(6), 223.1, 390 of the Municipal Act, where specific entities are excluded from the s. 1(1) definition of “local board” for other purposes. None of these provisions exclude either an Election Compliance Audit Committee or a Property Standards Committee from the definition, although other entities that are not specifically listed in the s. 1(1) definition are excluded.

[41] The Municipal Act also permits the Minister to make regulations prescribing local boards for certain purposes. Neither an Election Compliance Audit Committee nor a Property Standards Committee has been so prescribed.

[42] The Municipal Act gives the municipality the power to dissolve local boards and assume their powers. Section 216 of the Municipal Act confirms that a municipality has the authority to dissolve (or change) a “local board” with listed exceptions. Neither an Election Compliance Audit Committee nor a Property Standards Committee is listed as an exception to this power. Further, under O.Reg. 582/06 (“Dissolution of and Assumption of Powers of Local Boards”), where a local board is dissolved by a municipality, the powers of the local board vest in the municipality and the municipality stands in the place of the local board for all purposes. The general language in the s. 1(1) definition must be interpreted within this statutory context. This power is a significant factor for the Committees at issue here, as discussed below.

[43] There is little case law on the interpretation of “local board.” There are a few cases in which a similar definition is interpreted in the context of deciding whether an entity is entitled to a tax exemption or rebate: Hamilton (City) v. Hamilton Harbour Commissioners (1984), 1984 2125 (ON SC), 48 O.R. (2d) 757 (H.C.); St. Lawrence Power Co. v. Ontario (Minister of Revenue) (1978), 1978 1409 (ON SC), 23 O.R. (2d) 61 (H.C.); Toronto and Region Conservation Authority v. Ontario (Minister of Finance) (1999), 9 M.P.L.R. (3d) 312 (Ont. S.C.J.). As well, a similar definition has been considered in the conflict of interest context: Mangano v. Moscoe (1991), 1991 7344 (ON SC), 4 O.R. (3d) 469 (Gen. Div.); Westfall v. Eedy (1991), 1991 7284 (ON SC), 6 O.R. (3d) 422 (Gen. Div.). No other authorities have been provided to us.

[44] These cases do not address the specific statutory regime at issue here. However, the definitions of “local board” in the legislation at issue in the above cases do begin with a list of specific entities, followed by general language that is similar to the s. 1(1) definition of “local board” in the Municipal Act. One of the principles relied upon in some of the cases is ejusdem generis, under which the general language in the definition ought to be interpreted to include only entities “of the same kind or nature” as those that are specifically listed: Hamilton Harbour Commissioners, at p. 770, para. 40; St. Lawrence Power Co., at p. 63, para. 10; Toronto and Region Conservation Authority, at para. 24; Westfall, at p. 428, para. 18.

[45] The City of Hamilton submits that the Election Compliance Audit Committee and Property Standards Committee, and all other entities that are statutory adjudicative tribunals performing quasi-judicial functions, are not “local boards” within the applicable definition in the Municipal Act. In summary, it submits as follows:

(i) that these two Committees are not expressly listed in the definition and the general language in the definition should be interpreted in the entire context, including the power of the municipality to dissolve a local board and stand in its place, which is inconsistent with the legislative regime that applies to these Committees;

(ii) that under the ejusdem generis principle, these Committees are not of the same kind or nature as the entities that are specifically listed in the definition because they do not act for a local or municipal purpose or on behalf of the City’s interests and are not providing municipal services; and,

(iii) similarly, that the quasi-judicial decision-making function of these Committees distinguishes them from the entities that are expressly named and is inconsistent with an interpretation that includes them within the definition of a “local board.”

[46] With respect to the adjudicative nature of these Committees, the City relies on the law of deliberative secrecy, which protects adjudicative decision makers from intrusion into their decision-making process: MacKeigan v. Hickman, 1989 40 (SCC), [1989] 2 S.C.R. 796, at p. 806, para. 4 (Lamer J. as he then was), pp. 807, 809, paras. 10, 13 (Wilson J.), pp. 840-841, paras. 33-35 (Cory J.); Cherubuni Metal Works Ltd. v. Nova Scotia (Attorney General), 2007 NSCA 37, 253 N.S.R. (2nd) 134, at paras. 14, 18, 20, 22 and 34-37. Deliberative secrecy applies to administrative tribunals, although not with the same force as it applies to courts: Quebec Commission des affaires sociales) v. Tremblay, 1992 1135 (SCC), [1992] 1 S.C.R. 952, at p. 966, para. 33. It may be lifted due to natural justice concerns and can be abrogated by statute, though to do so would require clear and express language: Quebec (Commission des affairs sociales); Ontario (Liquor control Board) v. Magnotta Winery Corp., 2010 ONCA 55, 102 O.R. (3rd) 545, at para. 38. The City submits that it has not been abrogated here. The City further relies on the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), submitting that it ousts the application of the open meeting requirements in s. 239 of the Municipal Act in any event.

[47] The Ombudsman relies on the above case law, based upon which he advances four characteristics of local boards that he submits support the conclusion that these Committees are “local boards”:

(i) that the entity is carrying on the affairs of the municipality;

(ii) that there is a direct link with the municipality either by way of legislation or through authority from the municipality;

(iii) that there is a connection to or control by the municipality; and,

(iv) that there is an element of autonomy.

[48] There is an acknowledged overlap between the above factors. Further, although these factors are derived from the cases, the cases address different statutory regimes and for the most part, do not provide extensive analysis. The exception is Toronto and Region Conservation Authority v. Ontario (Minister of Finance), which underscores the need to look at the purpose of the specific legislation and all other relevant factors in determining whether an entity falls within the general language in the definition of “local board.”

[49] The Ombudsman further submits that the open meeting requirements under s. 239 of the Municipal Act, which include a number of exceptions, do not provide an exception for deliberations and therefore do override deliberative secrecy. If the Election Compliance Audit Committee and the Property Standards Committee are “local boards” and their deliberations are “meetings or parts of meetings,” there is no exception in s. 239 that permits deliberations in private. It is agreed that none of the exceptions under s. 239 apply.

[50] I first consider these arguments as they apply to the two Committees at issue, specifically the Election Compliance Audit Committee and the Property Standards Committee. I deal separately with the City’s request for a declaration that extends beyond these two Committees.

Election Compliance Audit Committee

[51] In that the Election Compliance Audit Committee is not one of the entities listed under the definition of “local board”, the issue is whether it falls within the general language in the definition. Thus, the issue is whether it is another “board, commission, committee, body or local authority established or exercising any power under any Act with respect to the affairs or purposes of one or more municipalities” within the meaning of the definition. These words must be read in their entire context, having regard for the purpose of the relevant legislation.

[52] I accept the Ombudsman’s submission that a local board must have some autonomy from the municipality. A “local board” is not the municipality itself – it is a separate entity. But all separate entities are not necessarily local boards. Further, the degree of independence from a municipality may also be an indication that the entity is not a local board: e.g., Toronto and Region Conservation Authority.

[53] The City accepts that the Election Compliance Audit Committee’s affairs or purposes are “loosely linked” to the City insofar as the Committee is concerned with the campaign finances of candidates in the City’s municipal election (whether the candidate wins or loses). Further, the City appoints the members of the Committee and provides the Committee with administrative support. This support includes posting notices and decisions on the City’s website and the use of facilities and secretarial and legal staff, and the City bears the costs of the Committee.

[54] However, the Election Compliance Audit Committee was not established to run City affairs, nor does it exercise power over any actual City affairs or purposes. Further, the connections with the City do not include the delegation of the Committee’s decision-making role to the City and do not compromise the Committee’s impartiality. In addition, the Committee does not derive its authority from the City.

[55] The City submits that this Committee is unlike the entities specifically listed in the definition, relying on the interpretative principle of ejusdem generis. The City submits that the entities that are specifically listed all act for a local or municipal purpose or on behalf of the City and actually provide municipal services. This Committee does not do so. The provision of municipal services has been found to be an indication that an entity is a local board: Toronto and Region Conservation Authority, at para. 15, citing St. Lawrence Power Co. v. Ontario (Minister of Revenue).

[56] This submission is supported by the legislative regime that applies to a number of the entities specifically listed in the s. 1(1) definition. Beginning with municipal service boards, the Municipal Act permits a municipality to establish municipal service boards and delegate powers and duties of the municipality to those boards (s. 198). The focus is on the provision of municipal services that would otherwise be provided by the municipality. Similarly, boards of health are local boards specifically listed in the s. 1(1) definition, also referenced in s. 10(6) of the Municipal Act, and are charged with providing local health programs and services: ss. 1(1), 4, 5, 61 and 67 of the Health Protection and Promotion Act, RSO 1990, c H.7. A planning board, also specifically listed in s. 1(1), provides advice and assistance in the preparation of an official plan for the municipality among other things: Planning Act, R.S.O. 1990, c. P.13.

[57] Police services boards and public library boards are also specifically listed in the s. 1(1) definition, and relate to the provision of municipal services (Police Services Act, R.S.O. 1990, c. P.15, Public Libraries Act, R.S.O. 1990, c. P.44). However, under s. 238 of the Municipal Act they have been expressly exempted from the definition of “local board” for the purpose of the open meeting requirements. We have been provided with no submissions or material regarding why those two types of boards were excluded under s. 238, nor any suggestion that it is significant to this case. There remains, in the list of specific entities in the s. 1(1) definition, a “transportation commission,” which is not defined or connected to specific legislation describing its purposes.

[58] There is, therefore, some support for the City’s submission that local boards provide services for municipalities.

[59] The City further submits that the Election Compliance Audit Committee is unlike the entities specifically listed in the definition of “local board” because it is an adjudicative body that makes quasi-judicial decisions. However, this general proposition conflicts with the Municipal Act itself because of its regime regarding the delegation of powers.

[60] Section 23.1 and related provisions in the Municipal Act confirm that ss. 9, 10 and 11 of the Act authorize a municipality to delegate its powers. Section 23.4 expressly contemplates that power may be delegated to a municipal service board, which is one of the entities specifically listed in the definition of “local board.” And s. 23.2 of that Act confirms that, in certain circumstances, quasi-judicial powers may be delegated by a municipality. In addition, s. 23.5 provides that delegation is permitted where a municipality is required by law to hold a hearing. There are various exceptions and requirements regarding delegation, none of which foreclose the potential for quasi-judicial powers to be delegated to a municipal service board. Thus, the Act contemplates that quasi-judicial powers may be delegated to a municipal service board, which is specifically named in the s. 1(1) definition of “local board.” I am therefore not persuaded by the City’s distinction based upon quasi-judicial functions.

[61] Construing the definition of “local board” in its entire context requires that a municipality’s power to dissolve a local board and stand in its place be taken into account, as well as the regime implemented in the related Municipal Elections Act. An interpretation that a municipality has the power to dissolve and take over the functions of the Election Compliance Audit Committee is completely inconsistent with the Municipal Elections Act and its legislative history.

[62] Before legislative reform in 2009, the functions of the Election Compliance Audit Committee were performed by municipal council. In 2009, the provincial legislature removed the functions from that politically-minded setting to the Election Compliance Audit Committee: Lancaster v. St. Catharines (City), at para. 31; Good Government Act, S.O. 2009, Sch. 21.

[63] Through that legislative reform, the functions now performed by the Election Compliance Audit Committee were distanced from the municipality. That independence was underscored by the statutory requirements introduced into the Municipal Elections Act that the Committee must not include members of council, among others with connections with the municipality. The City does not control the Committee.

[64] Proper statutory construction favours harmony between these two related provincial statutes. The clear legislative intent under the Municipal Elections Act is that members of a municipal council or certain related parties should not be making the decisions about whether a compliance audit, or litigation, should be initiated regarding a candidate in a municipal election. If this Committee is a local board, the municipality could do just that by dissolving the Committee and taking over its functions.

[65] The purposes of the term “local board” in the Municipal Act are varied, general and not defeated by an interpretation that excludes this Committee. They are not specifically focused on the open meeting provisions and thus not limited to the purpose of that requirement. I note, however, that the Municipal Elections Act itself has an open meeting provision. That requirement persists. The interpretation of that provision and whether it permits deliberations in private are issues that were not the focus of the application.

[66] I conclude that, interpreting the definition of “local board” in its full statutory context and in harmony with the Municipal Elections Act, the Election Compliance Audit Committee is not a local board. It is an independent and impartial decision-making body with a mandate that is part of the Legislature’s oversight of municipal elections. Its purpose, as set out in the Municipal Elections Act, is to make certain decisions that form part of the enforcement of election finance provisions in that Act, for which it is distanced from the municipality in a manner that is inconsistent with a municipality’s power to dissolve a local board.

Property Standards Committee

[67] Much of the above analysis applies to the Property Standards Committee as well. However, it brings in a different legislation regime under the Building Code Act and has a different adjudicative function and purpose.

[68] The Property Standards Committee is also not specifically listed in the s. 1(1) definition of “local board” in the Municipal Act, nor is it named in other provisions of that Act that exclude entities from that definition for various purposes. It also has similar connections with the City, which appoints its members, and receives similar administrative support.

[69] An independent and impartial adjudication is central to the mandate of this Committee. The purpose of the Property Standards Committee is to provide an appeal to property owners and occupants against whom orders have been made by municipal officers. The Committee conducts a full hearing, including opening statements, witness testimony taken under oath, the introductions of documents as exhibits, and closing arguments. It determines whether an order made by a municipal officer should be confirmed, modified or rescinded.

[70] The Ombudsman submits that this Committee carries on the affairs of the municipality in that it is created by the City’s property standards by-law, and the City is not obliged to have a property standards by-law. It chose to do so. However, it is the Building Code Act, not the City, which requires that if there are property standards being enforced by the municipality, there must be a Property Standards Committee to hear appeals. I nonetheless agree that this Committee is more closely involved in municipal affairs than the Election Compliance Audit Committee.

[71] Like the Election Compliance Audit Committee, the purpose of the Property Standards Board is inconsistent with the power to dissolve a local board and assume the power itself. The Building Code Act does not have the same legislative history as the Municipal Elections Act or the related provision that expressly excludes municipal councilors from becoming members. However, the Building Code Act expressly requires that the City, which enforces property standards, constitute a Property Standards Committee to conduct these appeals. It is not optional. If the City could dissolve the Committee and assume its powers, it would defeat the statutory regime under the Building Code Act.

[72] As well, the statutory interpretation argument based upon the ejusdem generis principle has more force when considering the Property Standards Committee. This Committee does not just make quasi-judicial decisions; it is charged with deciding appeals from orders already made against individuals. Where the Election Compliance Audit Committee decides whether to initiate a process, this Committee fully decides the merits of the appeal. None of the specifically listed entities in the s. 1(1) definition of “local board” are charged with conducting an appeal from an order already made against an individual in regard to their property, subject to the lack of legislation or information before us regarding a “transportation commission.” With that proviso, the entities specifically listed in the definition are not of the same kind or nature as the Property Standards Committee.

[73] The Building Code Act uses the term “hearing” not “meeting” when addressing the Property Standards Committee. The term “hearing” is also used to refer to the further appeal to the Court from the decision of the Committee. On its plain language, there must be a public hearing, as there is, but there is no broader open meeting provision that could be said to abrogate deliberative secrecy. It is difficult to see how this Committee, charged with deciding an appeal of the merits from an order, could effectively deliberate in public after its hearing. This would mean that discussions about witness credibility, inferences from the facts and the myriad of other issues that could arise would have to be discussed in front of all concerned. The deliberative secrecy principle recognizes the importance of private deliberations to a fair and just adjudication. It preserves adjudicative independence so that the adjudication occurs with circumspection, reflection and full discussion: Noble China Inc. v. Lei (1998), 1998 14708 (ON SC), 42 O.R. (3d) 69 (Gen. Div.), at p. 80, para. 34-35. On its face, the Building Code Act does not abrogate deliberative secrecy. This is consistent with the purpose of this Committee under the Building Code Act. An interpretation that the Committee is a local board is in conflict with this regime.

[74] The SPPA provides a procedural framework for all statutory tribunals that are required to hold hearings, including this Committee. Section 9 of that Act provides that all “hearings” must be open to the public, yet no authority has been placed before us holding that s. 9 abrogates deliberative secrecy.

[75] I conclude that, interpreting the definition of “local board” in its full statutory context and in harmony with the Building Code Act, the Property Standards Committee is not a local board. It is an independent and impartial decision-making body. Its purpose, as set out in the Building Code Act, is to adjudicate on appeals from orders of municipal officers made against individuals regarding their property after, essentially, a full trial. The Property Standards Committee is a mandatory part of the property standards regime. The Committee is different in nature from most if not all of the listed entities, and a finding that it is a local board would be inconsistent with deliberative secrecy and inconsistent with a municipality’s power to dissolve a local board.

No jurisdiction

[76] Given my conclusion that the Election Compliance Audit Committee and the Property Standards Committee are not local boards, the Ombudsman does not have jurisdiction to investigate either of them under s. 14.1 of the Ombudsman Act or s. 239.1 of the Municipal Act. As a result, there is no need to address the further argument advanced by the City that the deliberations of these Committees are not “meetings or part of meetings” or the argument that s. 239 of the Municipal Act does not apply in any event because of the SPPA.

Statutory adjudicative tribunals more generally

[77] The City has requested a broad declaration regarding the Ombudsman’s jurisdiction that extends beyond the Election Compliance Audit Committee and the Property Standards Committee. Specifically, it requests a declaration that the Ombudsman does not have jurisdiction to investigate “the City’s statutory adjudicative tribunals performing quasi-judicial functions.” I am not prepared to grant that broader declaration. The conclusions regarding the two Committees that are the focus of this application are very dependent on their specific statutory regimes and related purposes. As well, quasi-judicial functions do not, by themselves, mean that an entity is not a local board. These determinations are context-dependent and a broader declaration is therefore not appropriate.

Judicial review of Report of the Ombudsman

[78] In addition to its application under s. 14(5) of the Ombudsman Act, the City has sought certiorari and prohibition under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 2(1)1. More specifically, the City asks that if this Court finds that the Ombudsman had no jurisdiction to investigate the Election Compliance Audit Committee, the Ombudsman’s July 2016 Report be quashed, declared of no force and effect and that there be an order of prohibition precluding any further investigations regarding these Committees including the investigations that are already underway.

[79] The Ombudsman objects to any relief under the Judicial Review Procedure Act regarding his Report because his Report merely stated an opinion and made recommendations. The Ombudsman submits that recommendations made in the Report are not an order against the City, are not legally enforceable as an order, and are not the proper subject-matter for an order for the requested relief under the Judicial Review Procedure Act: see, e.g., C.U.P.E., Local 873 v. British Columbia (Attorney General), 2010 BCSC 593, at para. 50, citing U.T.A., Locals 1778 & 1923 v. B.C. Rail Ltd. (1992), 1992 1163 (BC CA), 67 B.C.L.R. (2d) 112 (B.C.C.A.). Other objections are also made regarding this request for extraordinary relief under that Act.

[80] The City recognizes that the Report is not legally binding on it but submits that the Report nonetheless carries weight and could confuse the complainant and the public.

[81] With respect to the claim for prohibition, the Ombudsman further confirms that an order of prohibition is not required in that he recognizes that he is subject to a declaratory order made under s. 14(5) regarding his jurisdiction. Neither an order for prohibition nor a further declaration is required.

[82] In the above circumstances, I am not prepared to grant the relief requested under the Judicial Review Procedure Act.

Orders made

[83] I therefore grant an order declaring that the Ombudsman has no jurisdiction to investigate the Election Compliance Audit Committee or the Property Standards Committee under either s. 14.1 of the Ombudsman Act or s. 239.1 of the Municipal Act, and dismiss the balance of the application insofar as additional relief was sought.

[84] Given the divided success on the application, there shall be no order as to costs.

Justice W. Matheson

I agree _______________________________

Justice J. K. Trimble

I agree _______________________________

Justice L. C. Sheard

Released: August 28, 2017

CITATION: City of Hamilton v. Ombudsman of Ontario, 2017 ONSC 4865 DIVISIONAL COURT FILE NO.: DC-16-772 DATE: 20170828

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MATHESON, TRIMBLE AND SHEARD JJ.

BETWEEN: CITY OF HAMILTON Applicant – and – OMBUDSMAN OF ONTARIO Respondent

REASONS FOR decision

Released: August 28, 2017

[^1]: There have been various amendments to the Municipal Election Act over the relevant period, resulting in changes to its section numbers. The current section numbers are used in these reasons for decision.