CITATION: Farber v. Kingston (City), 2007 ONCA 173
DATE: 20070315
DOCKET: C44971
COURT OF APPEAL FOR ONTARIO
GOUDGE, BLAIR AND LAFORME JJ.A.
B E T W E E N :
CORINNE FARBER
Paul DeMelo for the appellant
Applicant (Appellant)
- and -
THE CORPORATION OF THE CITY OF KINGSTON
Anthony Fleming for the respondent
Respondent (Respondent)
Heard: January 17, 2007
On appeal from the order of Justice Michael G. Quigley of the Superior Court of Justice, dated January 24, 2006, with reasons reported at (2006), 25 M.P.L.R. (4th) 177.
GOUDGE J.A.:
[1] At its regular public meeting on May 17, 2005, the City Council of the City of Kingston adopted a by-law changing the name of its principal public gathering place from “Market Square” to “Springer Market Square”, to recognize the donation of $1 million by the Springer family towards the revitalization of the Square.
[2] Prior to that, Council held two meetings that were closed to the public. On April 5, 2005, Council met in closed session and approved in principle the acceptance of the gift and the renaming of the Square. On May 17, 2005, before its regular public meeting, Council met in closed session again, during which it decided to recommend approval of the by-law at that evening’s public meeting.
[3] The issue in this appeal is whether the closed meetings on April 5 and May 17 failed to comply with the requirements of the Municipal Act, S.O. 2001, c. 25 (the “Act”), and if so, whether the by-law that was subsequently passed must be quashed for illegality.
[4] The application judge was not persuaded that the closed meetings were illegal, but in any event, since the by-law was passed at a public meeting, he concluded that the application should be dismissed.
[5] While I do not agree that all the steps taken by the respondent in connection with the closed meetings were in full compliance with the Act, I agree with the disposition made by the application judge. For the reasons that follow, I would therefore dismiss the appeal.
[6] The facts are uncontested. Market Square has been an historic landmark in Kingston for more than 200 years. In March 2005, the Springer family, a wealthy Kingston family, indicated that they intended to donate $1 million in support of the project undertaken by the City to revitalize the Square, with the understanding that the City would rename the Square in honour of the family.
[7] On April 5, 2005, Council met and by resolution decided to go into closed session. The resolution to do so simply indicated that at the closed meeting Council would be considering “legal matters”. Once in camera, Council received a report from the Commissioner of Operations about the renaming, together with legal advice on its ability to do so and on the agreement to be entered into with the Springer family. Council then voted to approve in principle the acceptance of the Springer donation and the renaming of the Square, subject to an agreement being negotiated with the family to be approved by the Committee of the Whole and the matter being reported out for final decision by Council in public session.
[8] On May 17, 2005, Council again resolved to meet in closed session to consider “legal matters”. Once in camera, Council received a further report on the renaming and further legal advice from the City Solicitor including his legal opinion on the agreement with the Springer family. Then, sitting in camera as Committee of the Whole, Council voted to report out in open session the same night its recommendation that Council pass the by-law accepting the Springer donation and renaming the Square as Springer Market Square.
[9] The open meeting that followed immediately was well attended by the public. Once the open session convened, Council voted to add the proposed by-law to its agenda with only one vote opposed. This more than met Council’s procedural requirement for a two-thirds majority to add a matter to the agenda.
[10] Council then debated the issue in open session for approximately one hour. This included discussion of whether public consultation or public meetings were required prior to the vote and whether the proposed renaming was appropriate. During the debate, two motions to require further public consultations were put and defeated. In the end, Council voted 7 to 5 to adopt By-Law 2005-137, which accepted the Springer family donation and approved Springer Market Square as the official name for the Square in perpetuity.
[11] The appellant, a resident of Kingston, then brought an application to declare the two closed meetings in contravention of the Act and to quash the by-law for illegality.
[12] The application judge concluded that the real decision to pass the by-law was made at the open meeting on May 17 and then only after lengthy debate. He found that no final determination on the issue was made at the closed meetings of April 5 and May 17. He dismissed the application, concluding as follows, at paras. 40-41:
Although the matter had been discussed by Council in the April 5th and May 17th in the[sic] in-camera meetings, there was no final determination on the issue until the matter was brought to Council and debated openly in the May 17th open meeting. I specifically reject the allegations of bad faith by the applicant in this application.
In view of my decision that this by-law was passed as a result of the public meeting of May 17, 2005, it is not necessary for me to decide on the legality of the April 5th and May 17th in-camera meetings. However, I have not been persuaded by the applicant that the April 5th and May 17th in-camera meetings were illegal. I find that the substantive matters discussed in those meetings would have properly been considered under section 239(2)(a) and (f) of the Municipal Act.
ANALYSIS
[13] The appellant seeks to quash By-law 2005-137 for illegality pursuant to s. 273(1) of the Act. She does not look to s. 272 of the Act and therefore, as counsel made clear in argument, there is no issue of Council acting in bad faith. Section 273(1) of the Act reads as follows:
273(1). Upon the application of any person, the Superior Court of Justice may quash a by-law of a municipality in whole or in part for illegality.
[14] The appellant argues that Council’s closed meetings of April 5 and May 17 did not comply with s. 239 of the Act in three respects and that therefore the resulting by-law should be declared illegal and quashed.
[15] Section 239 reads as follows:
239.(1) Except as provided in this section, all meetings shall be open to the public.
(2) A meeting or part of a meeting may be closed to the public if the subject matter being considered is,
(a) the security of the property of the municipality or local board;
(b) personal matters about an identifiable individual, including municipal or local board employees;
(c) a proposed or pending acquisition or disposition of land by the municipality or local board;
(d) labour relations or employee negotiations;
(e) litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board;
(f) advice that is subject to solicitor-client privilege, including communications necessary for that purpose;
(g) a matter in respect of which a council, board, committee or other body may hold a closed meeting under another Act.
(3) A meeting shall be closed to the public if the subject matter relates to the consideration of a request under the Municipal Freedom of Information and Protection of Privacy Act if the council, board, commission or other body is the head of an institution for the purposes of that Act.
(4) Before holding a meeting or part of a meeting that is to be closed to the public, a municipality or local board or committee of either of them shall state by resolution,
(a) the fact of the holding of the closed meeting; and
(b) the general nature of the matter to be considered at the closed meeting.
(5) Subject to subsection (6), a meeting shall not be closed to the public during the taking of a vote.
(6) Despite section 244, a meeting may be closed to the public during a vote if,
(a) subsection (2) or (3) permits or requires the meeting to be closed to the public; and
(b) the vote is for a procedural matter or for giving directions or instructions to officers, employees or agents of the municipality, local board or committee of either of them or persons retained by or under a contract with the municipality or local board.
[16] The appellant first argues that the subject matter considered at the meetings of April 5 and May 17 fits none of the exceptions in s. 239(2), particularly s. 239(2)(f), the primary exception relied on by the respondent.
[17] I do not agree. These meetings were about Council receiving and considering legal advice from the City Solicitor together with the surrounding circumstances relevant to that advice. Council obviously anticipated that this would all be done on a confidential basis. This advice was therefore subject to solicitor-client privilege. The exception relied on by the respondent clearly applies, and the meetings complied with s. 239(2).
[18] Secondly, the appellant argues that the resolutions stating that Council will go into closed session to consider “legal matters” were insufficient to comply with s. 239(4). She argues that such a resolution falls short of stating “the general nature of the matter to be considered at the closed meeting.”
[19] I agree. In the circumstances of this case, I do not think that the description “legal matters” is sufficient. In my view, the clear legislative purpose informing s. 239 is to maximize the transparency of municipal governance so far as that as possible in the circumstances. In RSJ Holdings Inc. v. London (City) (2005), 2005 43895 (ON CA), 16 M.P.L.R. (4th) 1 at para. 16, this court said the following:
Section 239(1) of the Act requires that all meetings shall be open to the public unless the subject matter being considered comes within an exception listed in subsection (2). In 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.
[20] The respondent argues that s. 239(4)(b) requires that the resolution do no more than state the exception in s. 239(2) relied on to justify closing the meeting to the public. However, in my view, if the legislative intent was to require no more than that, it would have been easy to say so in s. 239(4)(b). The notion of “the general nature of the matter to be considered” suggests more fidelity to transparent governance than that, while recognizing that a full description of the matter to be considered cannot be revealed to the public because of the very need to go into closed session.
[21] Reading subsections (2) and (4)(b) together in the context of the desirability of open municipal government, I think that the resolution to go into closed session should provide a general description of the issue to be discussed in a way that maximizes the information available to the public while not undermining the reason for excluding the public. Where the exception to the presumptive openness of Council meetings is that of privileged solicitor-client advice, there may be circumstances where the need for confidentiality encompasses even the information that such advice has been obtained on a specific issue. However, in this case no such suggestion is made. The broad issue to be discussed in closed session on April 5 and May 17 was privileged legal advice concerning the renaming of the Square. This triggered the exception in s. 239(2)(f). In the circumstances of this case, nothing has been put forward to suggest that the use of a general description such as this would impair any interest that the exception is designed to protect. At the very least, “legal matters” is inadequate to state the general nature of the matter to be considered at the closed meetings.
[22] The appellant’s third argument is that in taking the vote in closed session to approve in principle the renaming of the Square, the respondent violated ss. 239(5) and (6) of the Act.
[23] Those subsections, particularly s. 239(6)(b), precisely define the only votes that may be taken in closed session. This vote was neither. It was not a vote for a procedural matter nor for giving directions to staff. However, s. 244 contemplates that such votes may happen and provides for the consequence. It says that such an unauthorized vote is of no effect. The section reads as follows:
- Except as provided in section 233, no vote shall be taken by ballot or by any other method of secret voting, and every vote so taken is of no effect.
[24] I would therefore conclude that the vote held in the closed meeting of April 5 was not authorized by s. 239(6)(b) of the Act and was thus of no effect. I would not, however, characterize this as the respondent having violated the Act. It simply conducted a vote that the Act deems to have no legal effect.
[25] In summary, the respondent conducted two closed meetings that the Act permitted to be held in camera. Council did not pass the resolutions required by the Act prior to doing so. And, it conducted a vote at the first of these two meetings that was of no effect.
[26] The question then is whether any of these things render By-Law 2005-137 illegal as the appellants contends.
[27] In my view they do not.
[28] Closing the meetings of April 5 and May 17 to the public did not violate s. 239(2) of the Act, given the subject matter being considered. It is true that Council did not pass the resolution required by s. 239(4)(b) prior to doing so and s. 239(6)(b) does not authorize the vote to approve in principle conducted at the April 5 meeting. However, as a matter of law, s. 244 renders that vote of no effect. And as a matter of fact, the application judge found that no final determination was made by Council at either closed meeting. Rather, he found that the real decision to pass the by-law was made at the public meeting of May 17 after a lengthy debate. Thus, I conclude that the failure to pass the necessary resolutions prior to going into closed session and the unauthorized vote held on April 5 are at most procedural irregularities unconnected to the real decision to pass the by-law. They therefore do not taint its legality.
[29] In making her argument, the appellant relies heavily on RSJ Holdings Inc., supra. In that case, this court found that the City of London Council considered the interim control by-law at stake at a closed meeting and recommended that it be passed despite s. 239(2) not permitting it to be done in closed session. Council in that case then purported to pass the interim control by-law in open session but completely without public debate or discussion. As a result, this court quashed the by-law.
[30] That case is quite different from this one in two fundamental respects. First, the meeting at which the important decision about the by-law was taken was not one that s. 239(2) permitted to be in closed session. Second, the public meeting at which the by-law was passed was purely perfunctory. Using the language of the application judge in this case, it could not be said that the “real decision” to pass the by-law was made at an open meeting of Council. As a result, I find RSJ Holdings Inc. to be of no help to the appellant in this case.
[31] I therefore find that the application judge properly dismissed the application to quash By-Law 2005-137 for illegality.
[32] The application judge also declined to issue a separate declaration that the respondent failed to comply with ss. 239(2) and (4) of the Act. While I have found that the respondent did not comply with s. 239(4), that was a procedural irregularity only, unconnected to the passage of the by-law. Since the validity of the by-law was the real contest in this application, I do not think the application judge erred in declining to issue the declaration sought.
[33] In conclusion, I would dismiss the appeal with costs to the respondent fixed at $5,000.00, inclusive of disbursements and G.S.T.
RELEASED: March 15, 2007 “STG”
“S.T. Goudge J.A.”
“I agree R.A. Blair J.A.”
“I agree H.S. LaForme J.A.”