Investigation into a meeting held by the City of Greater Sudbury on January 12, 2021

Paul Dubé

Ombudsman of Ontario

Date: 2021-05-12

SUMMARY

The Ombudsman received a complaint about a closed meeting held by council for the City of Greater Sudbury on January 12, 2021 via electronic participation. The complaint alleged that council discussed an entertainment district in closed session. The Ombudsman found that council did not discuss the entertainment district. The Ombudsman found that the topics discussed in closed session fit within the exception for personal matters and information supplied in confidence by a third party. However, the Ombudsman found that council’s resolution to go in camera was not broadcast live. The Ombudsman recommended that the City ensure that the public is able to observe all open portions of electronic meetings.

COMPLAINTS

1My Office received a complaint about a meeting held by council for the City of Greater Sudbury (the “City”) on January 12, 2021.

2The complaint alleged that council discussed the Kingsway Entertainment District in camera and that this topic did not fit within the exceptions in the Municipal Act, 2001 (the “Act”) that were cited in council’s resolution to go into closed session.

3The complaint also alleged that council’s resolution to go in camera was not passed during a part of the meeting that was open to the public.

OMBUDSMAN JURISDICTION

4Under the Municipal Act, 2001, all meetings of council, local boards, and committees of council must be open to the public, unless they fall within prescribed exceptions.¹

5As of January 1, 2008, the Act gives anyone the right to request an investigation into whether a municipality has complied with the Act in closing a meeting to the public. Municipalities may appoint their own investigator. The Act designates the Ombudsman as the default investigator for municipalities that have not appointed their own.

6The Ombudsman is the closed meeting investigator for the City of Greater Sudbury.

7When investigating closed meeting complaints, we consider whether the open meeting requirements of the Act and the municipality’s governing procedures have been observed.

8Our Office has investigated hundreds of closed meetings since 2008. To assist municipal councils, staff, and the public, we have developed an online digest of open meeting cases. This searchable repository was created to provide easy access to the Ombudsman’s decisions on, and interpretations of, the open meeting rules. Council members and staff can consult the digest to inform their discussions and decisions on whether certain matters can or should be discussed in closed session, as well as issues related to open meeting procedures. Summaries of the Ombudsman’s previous decisions can be found in the digest: www.ombudsman.on.ca/digest.

INVESTIGATIVE PROCESS

9On January 22, 2021, we advised the City of our intent to investigate this complaint.

10My staff reviewed the City’s procedure by-law and relevant portions of the Act. We reviewed the meeting records, including the agenda, open and closed session minutes, and the archived broadcast of the meeting.

11We spoke with the complainant, as well as the Mayor and the City Clerk/Solicitor, to obtain additional information about the meeting and the City’s modified procedure for holding meetings electronically as a result of the COVID-19 pandemic.

12My Office received full co-operation in this matter.

PROCEDURAL BY-LAW

13The City’s procedure by-law (By-law 2019-50) states that meetings may be closed to the public in accordance with section 239 of the Municipal Act, 2001 provided that council pass a resolution stating the reason for closing the meeting and the general nature of the subject matter to be considered.

14Section 11 of the by-law provides that closed meetings shall be scheduled

immediately prior to a regular or special meeting of council and shall recess at least ten minutes prior to the time scheduled for the commencement of the regular or special meeting, unless otherwise determined by the Clerk.

15The by-law also provides that closed meetings of council shall be chaired by the Deputy Mayor, and that the Chair shall report back to the public after council reconvenes in open session.

ELECTRONIC MEETINGS

16Following amendments to the Municipal Act made by the Municipal Emergency Act, 2020 and the COVID-19 Economic Recovery Act, 2020, a municipality’s procedure by-law may now allow members to participate electronically in a meeting “to the extent and in the manner set out in the by-law.”² Members participating electronically can also be counted towards quorum.

17While these amendments allow for some additional flexibility in conducting meetings through electronic participation, they did not create any new exceptions to the open meeting rules, or change any of the applicable procedural rules. Municipal meetings are still required to be open to the public, unless the topic of discussion fits within one of the exceptions set out in the Act. Notice of meetings must still be provided in accordance with the procedure bylaw, meeting minutes must be recorded, and a resolution must be passed in open session before the meeting can be closed to the public.³

18Council amended the City’s procedure by-law to provide for members to participate electronically in both open and closed meetings and be counted towards quorum. Members are to advise the Clerk and Chair of their intention to participate electronically in a meeting.⁴

19The procedure by-law as amended indicates that the Chair, in consultation with the Clerk, shall determine any procedures required to ensure that meetings conducted with electronic participation are in compliance with the requirements of the Municipal Act.

JANUARY 12, 2021 MEETING

20The agenda for the January 12 council meeting indicated that it would be broadcast online and on television in real time and would also be saved for public viewing on the City’s website. Members of the public were not permitted to observe the meeting in-person due to restrictions related to COVID-19.

21The agenda indicated that council would hold a closed meeting at 4:00 p.m. in a committee room and by electronic participation to discuss two topics:

one (1) Information Supplied in Confidence item regarding the City of Greater Sudbury Community Development Corporation and one addendum to deal with one (1) Personal Matter (Identifiable Individual(s)) item regarding an employment matter in accordance with the Municipal Act, 2001, s. 239(2)(b) and (i).

22The agenda also indicated that council would hold an open session at 6:00 p.m. in council chambers and by electronic participation to address the rest of the items on the agenda.

23The closed session minutes indicate that the meeting began at 4:00 p.m. and that council passed a resolution to go in camera at 4:02 p.m. This portion of the meeting was not broadcast to the public.

24According to the closed session minutes and interviews conducted with individuals present during the meeting, staff provided an update to council about confidential information received from third parties regarding a development proposal. We were told that the third parties had specifically requested that the information remain confidential.

25Council then proceeded to discuss a matter involving an individual employed by the City. Council also had the opportunity to consult with the City’s external legal counsel about this matter, who participated electronically for part of the meeting.

26Council then recessed from closed session at 8:20 p.m.

27We were told that discussion about the second closed session agenda item took much longer than anticipated, and that the City’s closed meetings typically conclude prior to the scheduled start time of the open session at 6:00 p.m. Between 6:00 p.m. and 8:50 p.m. a message was displayed on the live broadcast indicating that the meeting would begin later than originally scheduled.⁵

28According to the closed session minutes and interviews conducted with individuals present during the meeting, council did not discuss the Kingsway Entertainment District at any point during the closed session.

29Council convened in council chambers in open session at 8:50 p.m. and a live broadcast commenced at that time. A roll call was conducted to confirm that members of council had logged in to the electronic meeting.

30The Mayor then made brief introductory remarks and noted that because the closed session had gone longer than anticipated, council might not be able to discuss all the outstanding agenda items. The Mayor commented upon newly announced public health restrictions related to COVID-19, and stated that he would be directing staff to prepare an updated report on the Kingsway Entertainment District project. The Mayor asked that further discussion on this topic wait until updated information was available to council.

31The Deputy Mayor then reported back on the two topics discussed in closed session and stated that no direction or resolution arose from the meeting.

32Council then proceeded to deal with other business. The meeting was adjourned at 9:05 p.m.

ANALYSIS

33The complainant who requested that my Office investigate this matter inferred from the Mayor’s remarks in open session that the Kingsway Entertainment District had been discussed in camera, even though it had not been listed in the agenda or report back provided by the Deputy Mayor.

34This topic was not discussed during the closed session held on January 12. We found that both topics discussed in camera fit the exceptions cited.

Applicability of the exception for personal matters about identifiable individuals

35The “personal matters” exception applies to discussions that reveal personal information about an identifiable individual, where an individual could reasonably be expected to be identified if the information were disclosed publicly.⁶

36While information that pertains to an individual in their professional capacity will not generally fit within the “personal matters” exception, it may still fit within the exception if it reveals something personal – for example, where it relates to the conduct or performance of an individual employee.⁷

37Council’s discussion in camera on January 12, 2021 involved consideration of an individual employee’s conduct. Accordingly, this topic fit within this exception.

Applicability of the exception for information supplied in confidence by a third party

38The exception under section 239(2)(i) of the Act applies to “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[.]”

39As my Office has found in a previous investigation, a party’s assertion that they would like a particular discussion to remain private does not, on its own, mean that the topic can be discussed in camera under this exception.⁸

40My Office has found that this exception is intended protect confidential information about third parties. In a report about the Municipality of St.-Charles, the Ombudsman found that discussion of a financial consultant’s report on municipal accounting practices did not fit within this exception.⁹ Although the consultant’s report was marked “supplied in confidence”, it summarized and analyzed information about the municipality, not information belonging to a third party.¹⁰

41In this case, council for the City of Greater Sudbury received commercial and financial information from third parties that had been supplied in confidence to the municipality. Unlike in the St.-Charles case, this information belonged to the third parties rather than to the City.

42Those we interviewed explained that discussions related to the project remained ongoing and that if disclosed, this information could prejudice the negotiating position of the parties involved in the proposal. We were told that if details of the proposal were made public, the third party proponents might be pressured to provide funding to other municipalities for similar projects and on similar terms.

43Disclosure of the commercial and financial information supplied to the City by third parties could reasonably have been expected to interfere with the competitive position and negotiations of those third parties. Accordingly, this topic fit within the exception.

Failure to broadcast the passage of a resolution to go in camera

44The Mayor and Clerk/Solicitor explained to my Office that prior to the imposition of restrictions on in-person attendance at meetings due to COVID-19, council met in a committee room before its regular meetings to conduct closed sessions. The door to this room was kept open and members of the public were welcome to attend and observe council pass a resolution to go in camera, at which point they would leave. After council rises from closed session, the rest of the meeting would be broadcast beginning at the time specified in the agenda and the public could also observe the meeting in person in council chambers.

45However, on January 12, 2021, the public was not permitted to attend council chambers or the committee room to observe the meetings. The live broadcast of the open meeting began at 6:00 p.m. and did not capture council’s resolution to go in camera, which was passed at approximately 4:00 p.m.

46I recognize that municipalities have faced unprecedented challenges in adapting their operations during the COVID-19 pandemic, as applicable laws, best practices, and public health guidelines continue to evolve. Nevertheless, as my Office has noted in previous closed meeting investigation reports, the amendments to the Municipal Act permitting electronic participation in meetings did not change the fundamental requirement that meetings must be open to the public, which enables citizens to observe council proceedings in action.¹¹ The Supreme Court of Canada has determined that the open meeting requirements in the Act demonstrate that the public has “the right to observe municipal government in process”.¹²

47Whenever the public is excluded from in-person attendance, it is imperative that the alternative electronic format selected enables the public to observe all portions of a meeting except a duly constituted closed session.

48Pursuant to section 239(4) of the Act, members of the public are entitled to observe council passing a resolution stating the general nature of the topics to be discussed prior to holding a closed session.

49This requirement is not a mere formality. As the Ontario Court of Appeal has explained, it allows the municipality to provide a general description of the matters to be discussed in a way that maximizes information available to the public without undermining the reason for closing the meeting.¹³

50In previous reports issued by my Office, I have noted that the resolution to close a meeting cannot be passed when the meeting is already effectively closed to the public.¹⁴ Meetings must begin in open session and the public must be able to attend or otherwise observe that portion of the meeting, even if council plans to go in camera shortly thereafter.¹⁵ The inclusion of the proposed resolution to go in camera on an agenda circulated prior to the meeting cannot substitute for inviting the public to observe the passage of the resolution in an open meeting.

OPINION

51Council for the City of Greater Sudbury did not discuss the Kingsway Entertainment District in camera on January 12, 2021.

52The topics discussed by council under the exceptions for personal matters about an identifiable individual and information supplied in confidence from a third party fit within those exceptions.

53However, council contravened the Act when it passed a resolution to go in camera in a portion of the meeting that was effectively closed to the public, as the public was unable to attend in-person or observe a live broadcast.

54I urge the City of Greater Sudbury to consider all available options to ensure that the public’s right to observe municipal meetings is upheld in full and that all portions of such meetings are broadcast live when there are restrictions on in-person attendance.

RECOMMENDATIONS

55I make the following recommendations to assist the City of Greater Sudbury in fulfilling its obligations under the Act and enhancing the transparency of its meetings:

Recommendation 1

All members of council and committees for the City of Greater Sudbury should be vigilant in adhering to their individual and collective obligation to ensure that the municipality complies with its responsibilities under the Municipal Act, 2001 and its procedure by-law.

Recommendation 2

Council for the City of Greater Sudbury should ensure that the public is able to observe all open portions of meetings held by council and its committees, including resolutions to go in camera.

REPORT

56Council for the City of Greater Sudbury was given the opportunity to review a preliminary version of this report and provide comments to my Office. In light of the restrictions in place related to COVID-19, some adjustments were made to our normal preliminary review process and we thank council and staff for their co-operation and flexibility. The comments we received were considered in the preparation of this final report.

57This report will be published on my Office’s website, and should be made public by the City of Greater Sudbury as well. In accordance with s. 239.2(12) of the Municipal Act, 2001, council should pass a resolution stating how it intends to address this report.