The Ombudsman reviewed a complaint about a closed meeting held by council for the Town of Saugeen Shores during which it discussed an update on a development project. Part of the discussion was about a document provided to council by the proponent of the project that related to financing and which the proponent had explicitly requested be kept confidential. The Ombudsman found that this part of the discussion fit within the open meeting exception for information supplied in confidence by a third party.
This includes discussions about information that:
- Falls into one of the listed types: trade secret, scientific, technical, commercial, financial, or labour relations information;
- Was supplied confidentially, whether explicitly or implicitly, to the municipality by a third party; and
- If disclosed, could reasonably be expected to cause harm, either by prejudicing significantly the competitive position or interfering significantly with the contractual or other negotiations of a person, group of persons or organization.
This does not include discussions:
- Where the information did not come from a third party; and/or
- Where there is only a merely possible or speculative risk of harm if the information were to be disclosed.
This exception was introduced on January 1, 2018, through changes to the Municipal Act, 2001.
The Ombudsman reviewed closed meetings held by council for the Town of Essex on February 20 and April 29, 2024. The Ombudsman found that council’s in camera discussion on February 20, 2024 about a plan to purchase a property and lease it to a third party fit within the open meeting exceptions for acquisition or disposition of land, and plans and instructions for negotiations. The Ombudsman also found that council’s closed meeting on April 29, 2024 fit within the open meeting exceptions for the acquisition or disposition of land, and information supplied in confidence by a third party, as council discussed details of a potential land transaction including confidential technical and commercial information. Lastly, the Ombudsman determined that the Town contravened the Municipal Act, 2001 in failing to state by resolution the general nature of the subject matter to be discussed in its closed sessions.
The Ombudsman reviewed a closed meeting held by council for the Town of Essex on May 6, 2024 where it cited the open meeting exceptions for information supplied in confidence by a third party and information belonging to the municipality to move in camera. The Ombudsman found that council’s discussions fit within the cited exceptions as confidential commercial and financial information supplied by a third party, as well as information belonging to the Town, were at the centre of the discussions, and public disclosure could have adversely affected the third party and the Town. The Ombudsman determined that the Town contravened the Municipal Act, 2001 in failing to state by resolution the general nature of the subject matter to be discussed in its closed session.
239(2)(d) Labour relations or employee negotiations|239(2)(i) Information supplied in confidence by a third party|239(2)(k) Plans and instructions for negotiations|background information|bargaining position|commercial information|financial information|harm (established)|labour relations information|negotiation|negotiation (significant interference with)|negotiation (to be carried on)|Parse discussion|third-party information
The Ombudsman investigated a closed meeting held by council for the City of Kitchener to discuss the implementation of a centralized model for operations related to certain arts and entertainment facilities. The Ombudsman found that parts of the closed session discussion fit within the exceptions for:
- Information supplied in confidence by a third party at section 239(2)(i) of the Municipal Act, 2001;
- Labour relations and employee negotiations at section 239(2)(d) of the Act; and
- Plans and instructions for negotiations at section 239(2)(k) of the Act.
As the discussion could not have realistically been parsed, the entire discussion fit within those exceptions.
The Ombudsman investigated a closed meeting held by the County of Haliburton to discuss the closure of a local hospital emergency room. The meeting was closed under the exception for information supplied in confidence by a third party. Representatives from the hospital attended the closed session and provided information to council. The County believed that the information it would receive from the third party in closed session would be supplied in confidence, however, the representatives confirmed that the information was not confidential. The Ombudsman found that the discussion did not fit into the cited exception. The Ombudsman recommended that when relying on this exception, the municipality consult with the third party providing the information ahead of the closed meeting to ensure that the information to be shared fits within the exception.
The Ombudsman found that discussions about a partnership proposal did not fit within the exception for information supplied in confidence because the information discussed was not supplied confidentially and the reasonable expectation of harm was not clearly established. As a best practice, the Ombudsman recommended that, before relying on the exception for information supplied in confidence, the Municipality should confirm with the third party whether or not the information was supplied in confidence, and, where appropriate, inquire into what concrete harms could be expected if the information were to be disclosed publicly.
Council for the Municipality of Arran-Elderslie held a closed session to discuss a pilot project with an upper-tier municipality. The Ombudsman found that the discussion fit within the exception for information supplied in confidence by a third party. The discussion involved financial and labour relations information supplied in confidence by the upper-tier municipality to the Municipality of Arran-Elderslie. The Ombudsman found that the information had been implicitly supplied in confidence and disclosure of the information could have significantly interfered with ongoing negotiations between the upper-tier municipality and other municipalities.
The Ombudsman found that council for the City of Greater Sudbury’s closed session discussion of third-party commercial and financial information on July 12, 2022 fit within the exception for information supplied in confidence by a third party. The Ombudsman found that the third-party information, which related to bids for a proposed municipal project, was supplied in confidence and that the public disclosure of the information could prejudice significantly the bidders' competitive positions in the bidding process or interfere with their contractual or other negotiations.
The Ombudsman received a complaint regarding closed meetings held by the City of Cornwall’s Municipal Grants Review Committee / Working Group on November 9 and November 30, 2021. The resolutions passed by the Committee to proceed in camera cited the closed meeting exceptions it relied on to exclude the public, but failed to provide any further detail regarding the intended discussion. The Ombudsman found that the Committee contravened subsection 239(4) of the Municipal Act, 2001 at both meetings when it failed to state by resolution the general nature of the matter to be considered in camera.
The Ombudsman received a complaint regarding closed meetings held by the City of Cornwall’s Municipal Grants Review Committee / Working Group on November 9 and November 30, 2021. At the time of the review, the Committee did not have a practice of returning to open session and reporting back. The Ombudsman found that the Committee’s practice of not returning to open session to adjourn the meeting was not in accordance with the City’s procedure by-law. The Ombudsman recommended reporting back as a best practice to increase transparency of the closed meeting process.
The Ombudsman received a complaint regarding closed meetings held by the City of Cornwall’s Municipal Grants Review Committee / Working Group on November 9 and November 30, 2021. The Ombudsman concluded that the exception for information supplied in confidence by a third party did not apply to the Committee’s in camera discussions at either meeting since there was no evidence that information disclosed during the meetings could have been expected to cause significant harm to a third party.
239(2)(c) Acquisition or disposition of land|239(2)(d) Labour relations or employee negotiations|239(2)(e) Litigation or potential litigation|239(2)(f) Solicitor-client privilege|239(2)(h) Information supplied in confidence by another level of government|239(2)(i) Information supplied in confidence by a third party|239(2)(k) Plans and instructions for negotiations|Resolution|resolution (general description)
The Ombudsman found that the resolutions to proceed into closed session passed by council for Norfolk County at meetings held on March 8, April 12, and May 10, 2022 provided general descriptions of the topics to be discussed in closed session, and therefore met the requirements of s. 239(4)(a) of the Municipal Act, 2001.
The Ombudsman investigated a closed meeting held by council for the Town of Pelham on April 19, 2021, during which council discussed future management and potential development of the local airport. The Ombudsman concluded that the exception for information supplied in confidence by a third party did not apply to council’s discussion since there was no evidence that information disclosed during the meeting could have been expected to cause significant harm to a third party. The Ombudsman found that council contravened the Municipal Act, 2001 when it met in closed session on April 19, 2021.
The Ombudsman investigated a closed meeting held by council for the Town of Pelham on April 19, 2021. In its resolution to proceed in camera, council cited an exception to the open meeting rules, however the Ombudsman found that council nonetheless contravened the requirements of section 239(4)(a) of the Municipal Act, 2001 by failing to state in the resolution the general nature of the matters to be considered in camera.
The Ombudsman considered the applicability of the exception for information supplied in confidence by a third party to Bruce County Executive Committee’s in camera discussion on January 10, 2019. The Ombudsman found that the discussion did not fit within this exception to the open meeting rules because none of the information discussed fell into the categories listed in s. 239(2)(i) of the Municipal Act, 2001 such as financial or commercial information.
The Ombudsman reviewed a complaint that council for the Township of Leeds and the Thousand Islands contravened the Municipal Act, 2001 when it went in camera on August 11, 2020. Council’s in camera discussion pertained to a study report and a funding application, both related to an internet broadband project.
The Ombudsman found that the study report was not information belonging to a third party under s. 239(2)(i). The Ombudsman found that council’s discussion about the study report was nonetheless permissible under the exception at s. 239(2)(j), information belonging to the municipality. However, council contravened the Act by discussing the funding application in closed session and by holding a vote by consensus on this matter. Furthermore, prior to moving in camera, council failed to state in its resolution the general nature of the matter to be considered as required by s. 239(4).
The Ombudsman reviewed a complaint that council for the Township of Leeds and the Thousand Islands contravened the Municipal Act, 2001 when it went in camera on August 11, 2020. Council’s in camera discussion pertained to a study report and a funding application, both related to an internet broadband project. The Ombudsman found that council’s discussion about the study report was permissible under the exception at s. 239(2)(j), information belonging to the municipality. However, council contravened the Act by discussing the funding application in closed session and by holding a vote by consensus on this matter. Furthermore, prior to moving in camera, council failed to state in its resolution the general nature of the matter to be considered as required by s. 239(4).
The Ombudsman received a complaint alleging that council for the Town of South Bruce Peninsula improperly met in closed session to receive a delegation on March 16, 2021, contrary to the Municipal Act, 2001. The Ombudsman’s review determined that council received and discussed detailed information from a third party company regarding that company’s development plans, expected profits, and intended use of proprietary technology. We were told that the third party specifically wished to discuss this commercial information in private because it did not want to prejudice a pending land transaction or alert competitors to the proprietary technology it intended to rely on to create a profitable business in a specific area. The Ombudsman found this closed session discussion was permissible under section 239(2)(i) of the Municipal Act as council discussed information supplied in confidence by a third party that, if disclosed, could reasonably be expected to significantly prejudice the competitive position of the business and significantly interfere with an ongoing land transaction.
The Ombudsman reviewed a closed session meeting held by the City of Greater Sudbury where council discussed a project proposed by a third party. Council received confidential commercial and financial information belonging to third parties. As the proposed project remained ongoing, this information could have prejudiced the parties’ competitive position and negotiations if it were disclosed. Accordingly, the Ombudsman found that this topic fit within the exception.
The Ombudsman reviewed the in camera session of the meeting of the Committee of the Whole for the Municipality of St.-Charles, in which documents and recommendations about the municipality’s finances were discussed. The council discussed a document containing a watermark indicating that it was “supplied in confidence” to the municipality by a consultant. The Ombudsman found the document summarized and analyzed information about the municipality, and was marked “in confidence” because it was created by a third party and given to the municipality. Section 239(2)(i) is intended to protect confidential information about a third party. Therefore, the discussion of this report marked “in confidence” did not fit within the information supplied in confidence exception.
239(2)(b) Personal matters|239(2)(d) Labour relations or employee negotiations|239(2)(f) Solicitor-client privilege|239(2)(h) Information supplied in confidence by another level of government|239(2)(i) Information supplied in confidence by a third party|239(2)(j) Information belonging to the municipality|239(2)(k) Plans and instructions for negotiations|airport|airport commission|local board|minutes (best practices)|Resolution|resolution (general description)
The Ombudsman reviewed a closed meeting held by the Niagara District Airport Commission to discuss airport fees. The Ombudsman found that the commission failed in its resolution to proceed in camera to cite the exception it was relying upon. The resolution was also not read out loud and members of the commission did not have a draft resolution prior to voting to proceed in camera. Additionally, although the general nature of the matter to be discussed was provided orally at the meeting, the formal written resolution failed to include that information. The Ombudsman recommended reading out the formal resolution prior to proceeding into closed session and that the formal resolution include information about the intended in camera discussion.