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High court sends cities strong message on open meetings

Two weeks ago, the Supreme Court of Canada sent municipalities across the country a strong message that they must comply with applicable open meeting provisions and refrain from holding unauthorized closed sessions.

In London (City) v. RSJ Holdings Inc., a unanimous court held that an interim control bylaw should be quashed for illegality because the city council discussed, and then effectively decided to pass, it during closed meetings, contrary to the their obligation under the open meeting provisions of the Ontario Municipal Act.

Despite the fact that the interim control bylaw was technically quashed, it's important to remember that the one-year moratorium, enacted in January of 2004, had since expired, the bylaw was upheld on its merits by the Ontario Municipal Board, and the resulting land use changes are now in effect in London, Ont.

To briefly review the history of the controversy, the application judge denied RSJ's application to quash the bylaw in the first instance, ruling that the discussion in the closed sessions were permitted because potential litigation was the subject matter under consideration. It was not disputed that both city council's planning committee and the full committee of the whole discussed the matter in closed sessions. The city argued that the discussions were permitted not only because of the likelihood of potential litigation under s. 239(2)(e), but also on account of the solicitor-client privilege under s. 239(2)(f).

The application judge agreed with the city's arguments that any votes taken in closed session were merely procedural and therefore permitted under the act, and that the city's failure to comply with s. 239(4) - requiring council to state by resolution the general nature of the matter to be considered at the closed meeting - was neither prejudicial nor affected the substantive validity of the bylaw.

On appeal, the city also argued that the meetings fell within s. 239(2)(g), allowing for a closed meeting where the subject matter under consideration is a matter in respect of which a committee or council may hold a closed meeting under another act. The city reasoned that since neither notice nor public hearing is required under the Planning Act before passing an interim control bylaw, the closed meetings were within the "under another act" exception as well.

The Court of Appeal rejected all of the city's arguments and quashed the interim control bylaw for illegality.

In the Supreme Court, the city abandoned its arguments that the meetings concerned matters that were subject to litigation or solicitor-client privilege, and based its argument on the grounds that the meetings were under the s. 239(2)(g) exception because an interim control bylaw could be passed without prior notice and without holding a public hearing. They also argued that their decisions are entitled to deference.

Focusing its attention on the city's s. 239(2)(g) argument, the Supreme Court looked to the historical background of the open meeting provisions, and then to the particular Planning Act provisions governing the interim control bylaw.

The court noted that, prior to 1995, the requirement of an open meeting was generally dependent on the type of meeting being held. Regular council meetings were generally open while committee and other meetings were closed at the discretion of council.

Referring to a 1984 Report of the Provincial/Municipal Working Committee on Open Meetings and Access to Information which were relevant to the reforms in the early '90s, the court pointed to the problem of lengthy closed special sessions followed by formal council meetings where the result of the deliberations are summarily ratified. The intention of the provisions now contained in s. 239 were to "increase public confidence in the integrity of local government, by ensuring the open and transparent exercise of municipal power" (paragraph 19).

The court also carefully reviewed the language of the interim control bylaw provisions (s. 38 of the Planning Act) and concluded that the city had improperly conflated the notice and hearing requirements (which are dispensed with in the case of an interim control bylaw) and the requirement to conduct the deliberations in public session (which are not).

For the court, the "distinction between the citizen's right to notice and participation, and his or her right to observe the municipal government in process" was clear. Nor were the city's actions saved by a deferential standard of review, as the court pointed out deference is appropriate when considering the merits of the city's actions, not whether they were adopted illegally.

In reaching its conclusion that the city acted improperly, the Supreme Court returned to the working committee report and emphasized the summary nature of the ratification of the bylaw once open session was resumed:

The city's conduct in closing the two meetings in question was neither inadvertent nor trivial. In fact, its council meeting of Jan. 19, 2004 was conducted in a manner that is rather reminiscent of the problems reported more than 20 years ago that led to the passing of the statutory open meeting requirement.

It is worth repeating the words of the working committee quoted earlier: "Some municipal councils employ lengthy, in-camera special and committee meetings to discuss matters under debate and then ratify their decision in full council in a few minutes, with minimal discussion." In my view, the eight-minute public session during the course of which the interim bylaw was passed without debate or discussion along with 31 other bylaws did nothing to cure the defect.

How should this case be interpreted? Was it a victory for the developer whose main concern was really to challenge the substantive implementation of the bylaw that led to new zoning rules now in force? Or was it more about the court going beyond the immediate interests of the particular parties to the action and articulating a result serving a broader public interest?

The expired bylaw has now been quashed, and RSJ has been awarded costs. But it seems the message in this case goes well beyond the underlying land use planning controversy.

In stressing the historical background materials and in making a clear distinction between the right to notice/participation and the right to observe, the court is elevating open meetings as a right held by the public regardless of whether compliance is outcome determinative in any particular instance.  It is no longer a sufficient rationalization of holding a closed session that the end result would have been the same or that there was no prejudice. In this respect, the means by which a decision is reached is just as important as the ends, if not even more so.

London and other cities should take some consolation that nothing in this case limits the substantive regulatory power of municipalities, which has grown considerably in Ontario in recent years. Indeed, it is because of these expanding powers that seemingly procedural issues of access and transparency take on so much more importance. Broad municipal powers under interim control bylaws and other regulatory tools are meeting with judicial approval, so long as the proper procedures are followed.

Had the city council conducted a vigorous debate in public session over the merits of the bylaw, the occurrence of the closed meeting would not have been as much of a concern. Rather than wait until well after the events in question to come forward, councilors should state their concerns about any closed meeting as soon as possible.

In this case, any councilor would have been free to exercise their prerogative in open session to pull the bylaw for discussion and engage in a public debate. New provisions of the Ontario Municipal Act could give municipalities and their councilors the tools they need to establish a much simpler and expedited process for sorting out open versus closed meeting questions in advance and without the risks and costs of protracted litigation.

Hopefully this case will act as an impetus for Canadian boards and municipalities to carefully review their open-meeting policies.

Samuel E. Trosow is an associate professor at the University of Western Ontario's faculties of law and information & media studies.

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