Court of Appeal for Ontario

Date: 2018-06-01 Docket: C64796

Judges: Doherty and LaForme JJ.A. and Himel J. (ad hoc)

Between

Ombudsman of Ontario Appellant

and

City of Hamilton Respondent

Counsel

Robert A. Centa and Denise Cooney, for the appellant

Byrdena M. MacNeil, for the respondent

Heard: May 22, 2018

On appeal from: the judgment of the Divisional Court (Matheson, Trimble and Sheard JJ.), dated August 28, 2017, reported at 2017 ONSC 4865.

Reasons for Decision

Main Issues

[1] There are essentially two issues before the court on the appeal and the cross-appeal. On the appeal, the Ombudsman of Ontario ("Ombudsman") argues that the Divisional Court erred in law in holding that neither the Election Compliance Audit Committee ("Audit Committee"), nor the Property Standards Committee ("Standards Committee") was a "local board" within the meaning of s. 14.1 of the Ombudsman Act, R.S.O. 1990, c. O.6.

[2] The purposes of and the statutory provisions governing the Audit Committee and the Standards Committee are fully set out in the reasons of the Divisional Court. We need not repeat that exercise.

[3] The City of Hamilton ("the City") submits that the Divisional Court was correct in its interpretation of the phrase "local board". Alternatively, on its cross-appeal, the City submits that even if the entities in question were "local boards", the deliberation component of their proceedings did not constitute "meetings" within the meaning of s. 239(1) of the Municipal Act, 2001, S.O. 2001, c. 25.

[4] For the reasons that follow, we agree with the Divisional Court's conclusion that neither the Audit Committee nor the Standards Committee fall within the meaning of the phrase "local board" and, as such, the Ombudsman had no jurisdiction under s. 14.1 to investigate whether those entities had complied with s. 239 of the Municipal Act. In light of our conclusion on the main appeal, it is unnecessary to address the cross-appeal and we do not propose to do so.[1]

The Main Appeal

[5] Section 239(1) of the Municipal Act declares that "all meetings shall be open to the public". There are exceptions to the requirement that the meetings be open to the public set out in the remainder of s. 239, but none of those exceptions are relevant here.

[6] Section 239.1(b) of the Municipal Act provides that a person may request an investigation of whether a "municipality or local board" has complied with the public meeting requirement in s. 239. The Ombudsman, under s. 239.1(b), may conduct that investigation. Section 14.1 of the Ombudsman Act dovetails with s. 239.1(b) of the Municipal Act by empowering the Ombudsman to investigate complaints made with respect to the failure to comply with the public meeting requirement of s. 239. The Ombudsman may investigate and report any conclusions and the reasons for those conclusions to the relevant municipality or local board. The Ombudsman may also make recommendations: Ombudsman Act, s. 14.1(7).

[7] The Ombudsman's power to investigate for compliance with the open meeting requirement applies to municipalities or "local boards": Ombudsman Act, s. 14.1(3). The operative definition of "local board" is found in s. 1(1) of the Municipal Act:

'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.

[8] Neither the Audit Committee nor the Standards Committee are among the entities specifically identified in the definition provided in s. 1(1). The Ombudsman argued, however, that both committees exercise power under legislation "with respect to the affairs or purposes of one or more municipalities" and are therefore "local boards" within the meaning of s. 1(1).

[9] The Ombudsman's submission would have considerable force if the general language at the end of the definition of "local board" stood alone. It does not. That general language follows the identification of several specific entities as "local boards". As this court recently observed in Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313, at para. 52:

Where a class of things is modified by general wording that expands the class, the general wording is usually restricted to things of the same type as the listed items (ejusdem generis).

[10] All of the named entities in the definition of "local board" provide services which are integral to the day-to-day operation of the business of municipalities. Neither the Audit Committee nor the Standards Committee provide the same kind of services.

[11] The Audit Committee is an investigative/adjudicative body created to enforce provincially enacted laws relating to municipal election campaign funding. As observed by the Divisional Court, the Audit Committee was created to remove that oversight function from the municipality. The Audit Committee does not provide a municipal service in the same sense as the entities enumerated in the definition of "local board".

[12] The Standards Committee is an adjudicative body. Its purpose is to adjudicate disputes between the municipality and individuals dissatisfied with orders made by municipal officers concerning compliance with property standards bylaws. We agree with the Divisional Court's conclusion that the function of the Standards Committee is dramatically different than the function of the entities specifically identified in the definition of "local board".

[13] Applying ejusdem generis to the definition of "local board", we are satisfied that the general language at the end of the definition does not include entities which cannot be said to carry on the operations of the municipality. The functions of the Audit Committee and the Standards Committee do not fall within that descriptor. They are not local boards. That, of course, does not mean that they are not subject to other legislation controlling the manner in which they are obligated to conduct their proceedings: e.g. see Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

[14] Consequently, we agree with the Divisional Court that the Ombudsman did not have jurisdiction under s. 14.1 of the Ombudsman Act to investigate the alleged non-compliance by the Audit Committee or the Standards Committee with the open meeting requirement of s. 239 of the Municipal Act.

[15] We would add, however, that we do agree with the Ombudsman's submission that the "deliberative secrecy principle" has nothing to do with the interpretation of the phrase "local board" in s. 1(1) of the Municipal Act. That principle would become relevant were this court to reach the merits of the cross-appeal.

The Cross-Appeal

[16] In the cross-appeal, the City urges the court to draw a distinction between the deliberative component of the proceedings of the Audit Committee and the Standards Committee, and other aspects of their processes. Given the finding that neither is a "local board", that distinction is unnecessary. We also note that on April 1, 2018, the Municipal Elections Modernization Act, 2016, s. 65 came into force and repealed subsection 88.34 of the Municipal Elections Act. The new provision, which applies to the Audit Committee, reads:

Open Meetings

(9.1) The meetings of the Committee under subsection (9) shall be open to the public, but the Committee may deliberate in private. 2017, s. 20, Schedule 10, (s. 2).

[17] We need not further address the merits of the cross-appeal.

Conclusion

[18] The appeal is dismissed. The cross-appeal is dismissed as moot without considering the merits of the cross-appeal. The parties agree there should be no order as to costs.

"Doherty J.A."

"H.S. LaForme J.A."

"Himel J. (ad hoc)"

Footnote

[1] In the cross-appeal, the City also asked for a declaration that s. 14.1 did not apply to the deliberations of any of the City's statutory adjudicative tribunals performing quasi-judicial functions. The Divisional Court declined to address the status of any tribunals other than the Audit Committee and the Standards Committee. We agree and also limit our reasons to those two committees.