The Ombudsman found that an in camera session held by council-in-committee for Norfolk County on November 15, 2023 to discuss a staff report on local development charges did not fit within the open meeting exception for litigation or potential litigation, as the possibility of litigation was speculative. Similarly, the Ombudsman also found that council’s in camera discussion on January 9, 2024 about a sign purchase did not fit within the open meeting exception for litigation or potential litigation, as the risk of litigation was speculative.
Section 239(2)(e) of the Municipal Act, 2001 allows a municipality or local board to proceed in camera to discuss “litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board.” The Act does not define what constitutes “litigation or potential litigation,” but the Ombudsman and the courts have determined this exception is reserved for circumstances where the subject matter discussed is ongoing litigation or involves a reasonable prospect of litigation.
In RSJ Holdings Inc. v. London (City)[1], the Ontario Court of Appeal considered the exception for litigation or potential litigation, noting that “[t]he fact that there might be, or even inevitably would be, litigation arising from the [matter discussed] does not make the ‘subject matter under consideration’ potential litigation.” In considering the related law of litigation privilege, courts have found that, while it is not necessary that litigation have commenced for litigation privilege to apply, “there must be more than a mere suspicion that there will be litigation.”[2]
The Ombudsman has found the exception applies in the context of anticipated litigation where there is more than a remote possibility litigation may commence, although the litigation need not be a certainty. Council must believe that litigation is a reasonable prospect and must use the closed meeting to explore that prospect in some way. However, the exception does not apply where the possibility that litigation may arise in the future is merely speculative. Discussions about whether or not to litigate are also included in the exception.
The Ombudsman has found that the presence of an outside or opposing party disqualifies the discussion from the exception. The purpose of the litigation or potential litigation exception is to enable the parties to prepare their positions in private and the presence of an outside or opposing party in the closed meeting defeats that purpose.
[1] RSJ Holdings Inc. v. London (City), 2005 CanLII 43895 (ON CA), at para 22.
[2] C. R., Re, 2004 CanLII 34368 (ON SC), at para 21 citing Carlucci v. Laurentian Casualty Co. of Canada, [1991] O.J. No. 269.
The Ombudsman found that at its special meeting on January 9, 2024, council for Norfolk County did not provide sufficient detail about the general nature of the matter to be discussed in its resolution to proceed in camera, as it only cited the open meeting exception from the Municipal Act, 2001.
The Ombudsman found that council for the City of London did not contravene the Municipal Act, 2001 on April 2, 2024 with respect to the general description of an item in its resolution to proceed into closed session. The item was described as “Litigation/Potential Litigation / Solicitor-Client Privileged Advice.” The Ombudsman was satisfied with the City’s explanation of the circumstances for why council could not have provided further information in its resolution.
The Ombudsman found that council for the Township of Lanark Highlands did not contravene the open meeting rules in the Municipal Act, 2001 when it discussed the Glenayr Kitten Mill in closed session. The Ombudsman found that these in camera discussions fit within the Act’s closed meeting exception for litigation or potential litigation.
The Ombudsman investigated a closed meeting held by council for the Municipality of Temagami on June 20, 2023. Council relied on the exception for litigation or potential litigation to discuss a financial contribution to a local long-term care home. The Ombudsman found that because litigation had occurred in the prior year under similar circumstances, it was reasonable for council to expect that there would be imminent litigation related to this matter, and therefore the discussion fit within the exception.
239(2)(b) Personal matters|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(3.1) Education or training|information already public prior to meeting|Resolution|resolution (general description)
The Ombudsman found that council for the Town of Amherstburg contravened the Municipal Act, 2001 on August 8, 2022, February 13, 2023, and March 27, 2023, by failing to provide sufficient information about some general topics of discussion in its resolutions to proceed into closed session.
The Ombudsman received a complaint that council for the Town of Grimsby contravened the open meeting rules when it held a closed meeting on February 21, 2023. Council’s in camera discussion was about the conduct of a particular individual and how council should respond. The Ombudsman found that the discussion did not fit within the exception for litigation or potential litigation. There was no ongoing litigation against the individual in question, nor was there a reasonable prospect of litigation, as council only briefly discussed the possibility of seeking legal advice about commencing litigation. However, the Ombudsman found that council’s discussion fit within other exceptions under the Municipal Act, 2001.
The Ombudsman received a complaint about a closed meeting of the City of Hamilton’s General Issues Committee held on February 6, 2019. The resolution to go into closed session referred to item 14.4 of the agenda, which was identified on the agenda as a “Roads Infrastructure Litigation and Review Assessment” with an associated staff report. Because the agenda provided some information about the nature of the subject matter to be considered, the Ombudsman found that the Committee did not breach the open meeting rules. However, going forward, he encouraged the Committee to ensure that not only the meeting agenda but also the resolution to proceed behind closed doors include a description of the topic(s) to be discussed.
The Ombudsman investigated a complaint about a closed meeting of the City of Hamilton’s General Issues Committee held on February 6, 2019. The discussion in closed session related to a consultant’s report from November 20, 2013 that found that there were low levels of friction on the Red Hill Valley Parkway. There was a confidential in camera PowerPoint presentation consisting of four parts.
During one part of the PowerPoint presentation, the Committee received information and advice from internal and external legal counsel about the consultant’s report and its impact on existing ongoing litigation involving the City. It also heard from counsel about, and discussed, related potential future litigation that was more than a mere possibility. Accordingly, the Ombudsman found that this discussion fit within the litigation or potential litigation exception.
The Ombudsman investigated a special closed meeting held by the Grey Bruce Health Unit’s Board of Health on May 12, 2021, as well as a closed meeting held by the Board’s Executive Committee on May 10, 2021. At both meetings, the discussion concerned potential litigation following the Health Unit’s receipt of a letter from a lawyer threatening litigation. The potential litigation was more than remote or speculative. At both meetings, litigation strategy was discussed. Accordingly, although not cited by either the Board of Health or the Executive Committee to close the May 10 and 12, 2021 meetings, the Ombudsman found that both discussions fit within the exception for litigation or potential litigation.
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 reviewed the applicability of the exception for potential litigation to portions of two closed meetings held by Council for the Township of Minden Hills on January 27, 2022 and March 10, 2022. At the January 27, 2022 meeting, staff communicated legal advice to council pertaining to a matter that was to be before a tribunal. Accordingly, the Ombudsman found that the discussion fit within the exception for litigation or potential litigation. With respect to the March 10, 2022 meeting, Council received staff advice that litigation would be required to resolve a planning application dispute. Council’s in camera discussion fit within this exception because the prospect of litigation was more than merely speculative.
The Ombudsman received two complaints alleging that the Town of South Bruce Peninsula voted in closed session on April 28, 2022, contrary to the requirements in the Municipal Act, 2001. The Ombudsman’s review determined that during the in camera discussion on April 28, 2022, council discussed whether to appeal a court decision. Accordingly, this discussion properly fit within the open meeting exception for litigation or potential litigation.
The Ombudsman reviewed a closed meeting held by council for the City of Pickering on January 10, 2022. The resolution passed by council 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 noted that the agenda and minutes provided a general description of the matter to be discussed in closed session, however this information was not also included in the resolution itself.
The Ombudsman reviewed a closed meeting held by council for the City of Pickering on January 10, 2022. The Ombudsman found that council discussed matters affecting the City and subject to ongoing appeals at the Ontario Land Tribunal. Accordingly, the discussion fit within the exception to the open meeting rules for litigation or potential litigation.
The Ombudsman reviewed a complaint that council for the City of Brockville contravened the Municipal Act, 2001 when it went in camera on October 13, 2021. Council’s in camera discussions pertained to an employee’s performance in their role and to the employee’s conduct. The Ombudsman found that council’s in camera discussion on October 13, 2021 was permissible under the exception at paragraph 239(2)(b), personal matters about an identifiable individual. However, council contravened the Act by failing to state in its resolution the general nature of the matter to be considered, as required by subsection 239(4). Generally, stating only the exception does not satisfy the requirements of the open meeting rules.
The Ombudsman reviewed a complaint that council for the City of Brockville contravened the Municipal Act, 2001 when it went in camera on October 13, 2021. Council’s in camera discussions pertained to an employee’s performance in their role and to the employee’s conduct. The Ombudsman found that council’s in camera discussion on October 13, 2021 was not permissible under the exception at paragraph 239(2)(e), litigation or potential litigation. There was no ongoing litigation at the time of the October 13, 2021 meeting and any concern about litigation was speculative.
The Ombudsman received complaints alleging that council for the Town of Amherstburg violated the open meeting rules found in the Municipal Act, 2001 on August 8, September 13, November 8, and November 16, 2021. The Ombudsman found that the Town contravened the requirements of section 239(4)(a) of the Act on September 13 and November 16, as the resolutions to go in camera did not provide general descriptions of the topics of discussion; instead, the resolutions merely cited the exceptions that council relied upon to move in camera. Conversely, for the November 8 meeting of council, the Ombudsman found that the resolution to move in camera provided more substantive details about the nature of the closed session discussions. The Ombudsman also found that although the resolution to move in camera on August 8 only cited the applicable exceptions in the Act, no further information could have been provided by council without undermining the reason for which the public was excluded from the discussion.
The Ombudsman received complaints alleging that council for the Town of Amherstburg violated the open meeting rules found in the Municipal Act, 2001 on November 16, 2021. During the in camera discussion on November 16, council discussed the Town’s ongoing litigation with a former staff member. A solicitor provided updates to council with respect to the ongoing litigation, as well as advice regarding next steps in the litigation. The Ombudsman found that the discussion about the ongoing litigation matter was properly closed under the exception for litigation or potential litigation.
Bruce County’s Executive Committee cited the exception for litigation or potential litigation when it proceeded in camera on August 2, 2018. The Ombudsman found that the Committee discussed the County’s ongoing litigation related to a land claim. Accordingly, the discussion fit within the open meeting exception for litigation or potential litigation.
The Ombudsman investigated two closed meetings held by council for the Township of McMurrich/Monteith on June 8 and July 6, 2021. The Ombudsman found that council did not contravene the Municipal Act, 2001 when it held a closed meeting on June 8, 2021 since part of the discussion fit under the exception for solicitor-client privilege and the rest of the discussion fit under the exception for plans or instructions for negotiations. The Ombudsman found that the delegation to council during the closed meeting on July 6, 2021 did not fit under any closed meeting exceptions while council’s subsequent discussion fit under the exception for litigation or potential litigation. Accordingly, the Ombudsman found that council contravened the Municipal Act, 2001 because it would have been possible for council to parse the delegation portion of the meeting from its subsequent discussion.
The Ombudsman reviewed a meeting of council for the Township of Brudenell, Lyndoch and Raglan. During the closed session, council received an update form staff about a matter that was before an administrative tribunal. The Ombudsman found that this topic fit within the exception for litigation and potential litigation, which includes matters before administrative tribunals. The Ombudsman noted that it is not necessary that council also receive legal advice or discuss litigation strategy for this exception to apply; rather, council may simply receive information or ask questions about the status of the litigation.
The Ombudsman reviewed closed meetings held by the City of Richmond Hill to discuss a land use planning matter that had been appealed to the LPAT. The Ombudsman found that each discussion fit within the exception for litigation or potential litigation.
The Ombudsman received a complaint about a closed meeting held by council for the Township of Russell on September 8, 2020. The complainant alleged that council’s discussion did not fit within the closed meeting exceptions in the Municipal Act, 2001. The Ombudsman’s review found that council discussed the potential for litigation given the Township’s receipt of verbal threats of litigation relating to a zoning dispute. Accordingly, the Ombudsman found that council’s discussion fit within the open meeting exception for litigation or potential litigation.
The Ombudsman reviewed the City of Hamilton’s General Issues Committee closed session to discuss events that may take place in the city in 2022 or 2023. The resolution to go into closed session stated “that Committee move into Closed Session respecting Items 13.2 to 13.4.” Item 13.2 of the meeting minutes is titled “Potential for Major Events in 2022 and 2023 (PED20071) (City Wide).” The Ombudsman found that the resolution to proceed in camera was sufficiently descriptive to provide information to the public without undermining the reason for excluding the public.
The resolutions for three meetings held by council for the Township of Carling on July 27, October 10, and November 13, 2018 did not describe the general nature of the subject matter to be considered in camera. Council only referenced the exception relied upon to close the meetings. The Ombudsman shared best practice suggestions with the municipality regarding including the general nature of the matter to be discussed in camera.
The Ombudsman determined the Municipality of West Nipissing contravened the requirements of the Municipal Act, 2001, by failing to state the general nature of the matters to be considered in camera within their resolutions to go into closed session.
The Ombudsman found that council for the Municipality of The Nation failed to state in its resolutions to close meetings on December 17, 2018, January 7, 2019, and January 14, 2019 the general nature of the subjects to be discussed. Instead, council only referenced the Municipal Act exceptions relied upon to close the meetings.
The Ombudsman found that council for the Municipality of The Nation did not violate the Municipal Act, 2001 on January 14, 2019, when it discussed in closed session litigation involving the municipality. The Ombudsman found the discussion fit within the exception cited under the Act for litigation or potential litigation.
The Ombudsman received a complaint regarding a closed meeting held on April 29, 2019. Council for the Township of Springwater closed the meeting to the public to discuss a legal letter. The complaint alleged that council’s discussion during that closed session did not fit within the closed meeting exception for litigation or potential litigation found in the Municipal Act, 2001. The Office’s review determined that council considered litigation or potential litigation against a named individual during the closed session. The review also determined that council discussed personal matters about an identifiable individual, another exception in the Act.
The Ombudsman reviewed a closed meeting held by the Policy Review Committee for the Town of Carleton Place to discuss a statement made by the mayor. The meeting was closed under the litigation or potential litigation exception. The municipality believed the mayor’s statement opened up the municipality to possible litigation from an identifiable individual. The Ombudsman considered the broader circumstances of the meeting in determining whether there was a reasonable prospect of litigation at the time of the meeting. The Ombudsman found that the mayor’s statement was contentious but did not justify the municipality’s suspicion that the statement opened up the municipality to liability. Accordingly, the Ombudsman found that the discussion did not fit within the litigation or potential litigation exception.
The Ombudsman reviewed a closed meeting held by the General Government Committee for the Municipality of St.-Charles that relied on the litigation or potential litigation exception to discuss allegations regarding employee municipal credit card abuse. During the meeting, the municipality reviewed written legal advice. The discussion included information about ongoing legal proceedings against the municipality and how the municipality’s response to the credit card abuse allegations could affect those proceedings. The Ombudsman found that the discussion fit within the litigation or potential litigation exception.
The Ombudsman reviewed a closed meeting held by council for the City of Timmins, which relied on the litigation or potential litigation exception to discuss an open procurement project. The municipality held the meeting in closed session due to concerns that an unsuccessful bidder might initiate legal proceedings against the municipality. The Ombudsman found that the litigation or potential litigation exception applies in the context of anticipated litigation where there is more than a remote possibility litigation may commence, although the litigation need not be a certainty. While it is not unusual for litigation initiated by unsuccessful bidders to occur at the conclusion of the procurement process, in this case, the municipality’s concern that litigation could occur was speculative. Accordingly, the Ombudsman found that the discussion did not fit within the litigation or potential litigation exception.
The Ombudsman reviewed a closed meeting held by council for the Township of Russell which relied on the litigation or potential litigation exception to discuss the naming rights for a new sports facility. The Ombudsman found that there was no evidence to indicate that council was considering ongoing litigation or had realistically contemplated a legal proceeding. It was mere speculation. Accordingly, the Ombudsman found that the discussion did not fit within the litigation or potential litigation exception.
The Ombudsman reviewed a closed meeting held by council for the Municipality of Brockton to discuss a matter related to the legality of the Walkerton Business Improvement Area’s (BIA) practices and structure. During the meeting, council considered a letter written by the solicitor of a local business owner raising concerns about the BIA and formally requesting that the BIA take corrective action. The Ombudsman found that litigation was a realistic possibility. Accordingly, the discussion fit within the litigation or potential litigation exception.
The Ombudsman reviewed two closed meetings held by council for the City of Timmins. The Ombudsman found that the resolutions to proceed in camera for both meetings failed to provide meaningful information to the public about the issues that were to be discussed in camera, and also that the resolutions failed to specify which closed meeting exception was intended to apply to each item on the closed meeting agenda. The Ombudsman recommended that council ensure that its resolutions to proceed in camera 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.
The Ombudsman reviewed a closed meeting held by council for the Township of Georgian Bay to discuss a shoreline structure that did not meet the requirements of the zoning by-law. The meeting was closed under the litigation or potential litigation exception. The municipality had received verbal threats of legal action from neighbouring land owners if the municipality did not enforce the zoning by-law. The Ombudsman found that the discussion fit within the litigation or potential litigation exception since legal action was a reasonable prospect.
The Ombudsman reviewed a closed meeting held by council for the Town of Grimsby to discuss a municipally controlled corporation, relying on the litigation or potential litigation exception. During the closed session, council discussed a proposal to obtain a business valuation of the corporation. The municipality believed that the business valuation of the corporation was sensitive business information that should remain confidential. The discussion referenced an ongoing arbitration process involving the municipality, however the arbitration was not the focus of the discussion. The Ombudsman found that binding arbitration may be akin to litigation. However, the discussion did not fit within the litigation or potential litigation exception because there was no evidence that the discussion involved current or pending litigation.
The Ombudsman reviewed a closed meeting held by council for Norfolk County to discuss the development of a site-specific zoning by-law, relying on the solicitor-client advice exception. During the closed session, council received legal advice on the matter from the municipality’s solicitor. The Ombudsman considered the decision in Farber v. Kingston, which found that a description that only stated “legal matters” without more specifics was inadequate. In this case, the Ombudsman found that the resolution was sufficient as it contained a general description, which included the matter to be considered and the type of discussion that would ensue.
The Ombudsman reviewed a closed meeting held by council for the County of Norfolk that relied on the litigation or potential litigation exception to discuss the development of a site-specific zoning by-law. The Ombudsman noted that the municipality was aware that identifiable individuals planned to file an appeal of the enacted site-specific zoning by-law to the Ontario Municipal Board. The Ombudsman found that council’s discussion fit within the litigation or potential litigation exception because there was a reasonable prospect of litigation with respect to the site-specific zoning by-law.
The Ombudsman reviewed a closed meeting held by the Walkerton Business Improvement Association (BIA) for the Municipality of Brockton. The meeting was closed under the litigation or potential litigation exception. The Ombudsman found that the resolution to proceed in camera did not provide any information about the subject matter of the discussion other than the exception authorizing the closed session. The Ombudsman encouraged the BIA to ensure that resolutions to enter closed session provide the public with a general description of the subject matter to be considered in camera, while balancing the need to protect confidential and sensitive information from disclosure.
The Ombudsman reviewed a closed meeting held by the board of directors for the Walkerton Business Improvement Area to discuss a staff report and accompanying legal opinion that responded to issues raised in a letter written by the solicitor of a local business owner. The meeting was closed under the litigation or potential litigation exception. The board had reason to believe that the local business owner would initiate legal proceedings if he were unsatisfied with the board’s actions. The Ombudsman found that the board’s discussion fit within the litigation or potential litigation exception.
The Ombudsman reviewed a closed meeting held by council-in-committee for the County of Norfolk to discuss an application to the Human Rights Tribunal of Ontario. The meeting was closed under the litigation or potential litigation exception. At the time of the meeting, a tentative settlement had been reached in the matter but had not yet been approved by council. The Ombudsman found that the discussion was about an ongoing litigation matter before an administrative tribunal. Therefore, the discussion fit within the litigation or potential litigation exception.
The Ombudsman reviewed a closed meeting held by council for the Town of Midland to discuss options related to a site plan agreement for a subdivision located in the municipality. The meeting was closed under the litigation or potential litigation exception. The site plan agreement had been the subject of complaints by residents. At the time of the meeting there was no specific threat of litigation or pending litigation with respect to the site plan agreement. Council’s discussion focused on matters that theoretically could lead to litigation depending on how council proceeded. The nature of the matter and the tone of communications between the municipality, residents and the developer was contentious. The Ombudsman found that the discussion did not fit within the litigation or potential litigation exception because litigation or other legal action did not rise above mere speculation.
The Ombudsman reviewed a closed meeting held by the Administration/Finance/Fire Committee for the Township of West Lincoln. The Ombudsman found that the resolution to proceed in camera only referenced the exceptions relied upon to close the meeting to the public but did not provide further information about the subject of the discussions. The Ombudsman also found that there was an opportunity to add more information about the in camera discussion to the resolution based on a resolution passed in open session that was related to the in camera discussion.
The Ombudsman reviewed two closed meetings held by the Public Works Committee of the Township of Bonfield. The Ombudsman found that the resolutions to enter closed session only included the exceptions that the committee relied upon to go in camera -- a practice which did not comply with the Act or the town’s procedure by-law. The Ombudsman recommended that the committee’s resolutions to move in camera provide greater information to the public on the general nature of the matter to be discussed.
The Ombudsman reviewed a closed meeting held by the Public Works Committee for the Township of Bonfield that relied on on the litigation or potential litigation exception to discuss the tender process for small equipment. During the discussion the committee considered various courses of action related to the municipality’s tender process in order to mitigate the potential for litigation from an identified source. The Ombudsman found that although there was no litigation ongoing at the time of the meeting, it was a reasonable prospect under consideration and not mere speculation. Therefore, the discussion fit within the litigation or potential litigation exception.
239(2)(a) Security of the property|239(2)(b) Personal matters|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(3.1) Education or training|Resolution|resolution (general description)
The Ombudsman reviewed several closed meetings held by council for the City of Port Colborne. The Ombudsman found that one resolution to proceed in camera failed to state the general nature of the matters to be considered in closed session. The Ombudsman found that council provided incomplete information regarding the subjects to be discussed in closed session. It failed to describe the general nature of the subject matter to be discussed in a way that maximized the information available to the public.
The Ombudsman reviewed a closed meeting held by council for the Town of South Bruce Peninsula to discuss a contract related to the Wiarton Keppel International Airport. The meeting was closed under the litigation or potential litigation exception. Council discussed the potential sale of the airport and a contract for airport fuel tank removal. The Ombudsman found that council did not discuss any litigation in progress or even contemplated litigation with respect to the contract. The prospect of litigation was mere speculation. Therefore, council’s discussion did not fit within the litigation or potential litigation exception.
The Ombudsman reviewed a closed meeting held by council for the Township of Woolwich. The Ombudsman found that the municipality failed to cite in its resolution the closed meeting exception relied upon to proceed in camera. The Ombudsman recommended that council ensure that the resolution discloses all exceptions authorizing the closed meeting discussion, and that the resolution includes both the fact of holding the closed meeting and the general nature of the subject matter to be discussed.
The Ombudsman reviewed a closed meeting held by the Chemtura Public Advisory Committee for the Township of Woolwich to discuss an opinion received from legal counsel that outlined steps that should be taken prior to pursuing civil action on a particular matter. The meeting was closed under the litigation or potential litigation exception. The Ombudsman found that although there was no litigation ongoing at the time of the meeting, there was a reasonable prospect of litigation. Therefore, the discussion fit within the litigation or potential litigation exception.
The Ombudsman reviewed three closed meetings held by council for the Township of McMurrich-Monteith. The Ombudsman found that during one meeting, the resolution to proceed in camera did not indicate that the exception applied to the subject matters to be discussed in camera. The Ombudsman found that at another meeting, the resolution to move into closed session failed to provide information about the general nature of the subject matter to be discussed.
The Ombudsman reviewed several closed meetings held by council for the Municipality of South Huron held between 2008 and 2013. The Ombudsman found that the resolutions to proceed in camera at most of the meetings only stated that council would meet in closed session at a given time. The resolutions failed to include the subject matter to be considered in closed session or the specific exception(s) relied upon to go into closed session.
The Ombudsman reviewed a closed meeting held by council for the Village of Westport. The resolution to proceed in camera only cited the exception relied upon to go in session and described the matter to be discussed as a “legal matter.” The Ombudsman found that in order to meet the requirements of the Municipal Act, 2001, the municipality must provide a description of the subject matter to be discussed in closed session.
The Ombudsman reviewed a closed meeting held by council for the City of Welland to discuss potential litigation against a party pertaining to the Flatwater Centre, located in the municipality. The meeting was closed under the litigation or potential litigation exception. The Ombudsman found that council was genuinely contemplating litigation during the closed session. Therefore, the discussion fit within the litigation or potential litigation exception.
The Ombudsman reviewed a closed meeting held by council for the Township of Ashfield-Colborne-Wawanosh to discuss a third party’s discharge of water onto a municipal road allowance. The meeting was closed under the litigation or potential litigation exception. The discharge of water caused damage to municipal property. The purpose of the closed session was to discuss the possibility of litigation to address the damage. The Ombudsman found that the discussion fit within the litigation or potential litigation exception because there was more than a suspicion or mere speculation that litigation would occur.
The Ombudsman reviewed a closed meeting held by council for the City of Timmins that relied on the litigation or potential litigation exception to discuss upgrades to the wastewater treatment plant. Council received an update from staff relating to the upgrade and, based on this information, considered taking legal action against a specific party connected with the project. The Ombudsman found that communications prepared by a prospective litigant, even in the absence of a lawyer, may fit within the litigation or potential litigation exception. The Ombudsman found that council’s discussion fit with in the cited exception because council was not merely speculating about the possibility of future litigation, but contemplated legal action against specific parties.
The Ombudsman reviewed a closed meeting held by council for the Town of Orangeville that relied on the litigation or potential litigation exception to discuss the terms of a lease agreement. The owner of the property was present during the meeting. There was a very real likelihood of litigation if the lease negotiations failed. However, the Ombudsman found that the presence of the owner of the property that the municipality was seeking to acquire disqualified the discussion from fitting within the litigation or potential litigation exception.
The Ombudsman reviewed a closed meeting held by council for the Town of Carleton Place to discuss litigation filed against the municipality regarding a development/permit dispute. Council met with the municipality’s solicitor and received legal advice about the litigation. The Ombudsman found that the discussion fit within the litigation or potential litigation exception, even though it was not relied on by the municipality, because council was discussing a response to active litigation.
The Ombudsman reviewed a closed meeting held by council for the Town of Fort Erie to discuss an agreement of purchase and sale for the Crystal Beach Gateway Project. The meeting was closed under the litigation or potential litigation exception. The municipality’s solicitor was present during the meeting. At the time of the meeting, there was a pending appeal before the Land Registry Tribunal with respect to absolute title on the property. The Ombudsman found that council’s discussion fit within the litigation or potential litigation exception.
The Ombudsman reviewed a closed meeting held by council for the Municipality of Bluewater that relied on the litigation or potential litigation exception to discuss a by-law to address building fees for wind turbines. During the meeting, the municipality’s solicitor gave advice about the resolution of a dispute with various wind turbine companies, and the steps the municipality needed to take to avoid a lawsuit. The Ombudsman found that the discussion fit within the litigation or potential litigation exception.
The Ombudsman reviewed a closed meeting held by council for the Township of Ryerson to discuss a rezoning application with the applicant. Council and the applicant reviewed details related to a proposed haul route and site plan. Although the municipality did not rely on it, the Ombudsman considered whether the discussion fit within the litigation or potential litigation exception. The purpose of the litigation or potential litigation exception is to enable the parties to prepare their positions in private. The presence of the applicant in the closed meeting defeated that purpose. Therefore, the discussion did not fit within the litigation or potential litigation exception.
The Ombudsman reviewed a closed meeting held by council for the Township of Ryerson that relied on the litigation or potential litigation exception to discuss a rezoning application. Council had not yet reached a decision on the rezoning application. The Ombudsman found that since no decision had been reached on the application, and there was no pending litigation or notice of an intent to take specific legal action, there was no reasonable prospect of litigation, and therefore the discussion did not fit within the litigation or potential litigation exception.
The Ombudsman reviewed a closed meeting held by the Personnel Committee for the Township of Bonfield to discuss an ongoing hearing before the Ontario Labour Relations Board. The meeting was closed under the litigation or potential litigation exception. The committee received legal advice from the municipality’s solicitor regarding the hearing. The Ombudsman found that the discussion fit within the litigation or potential litigation exception because the committee was discussing ongoing litigation before a tribunal.
The Ombudsman reviewed a closed meeting held by council for the Township of North Dumfries to discuss matters before the Ontario Municipal Board (OMB). The meeting was closed under the litigation or potential litigation exception. Council received an update on the matters from the municipality’s solicitor. The Ombudsman found that the discussion fit within the litigation or potential litigation exception because council discussed two active appeals before a tribunal.
The Ombudsman reviewed a closed meeting held by council for the Town of South Bruce Peninsula that relied on the litigation or potential litigation exception to discuss ongoing litigation involving the municipality. The Ombudsman found that the discussion fit within the litigation or potential litigation exception because council was receiving updates on active litigation.
The Ombudsman reviewed a closed meeting held by council for the Town of Larder Lake that relied on the litigation or potential litigation exception to discuss legal correspondence about a building permit infraction. The legal correspondence included a threat of legal action against the municipality. Council considered taking legal action in relation to the matter and provided instructions to legal counsel in order to respond to the letter. The Ombudsman found that the discussion fit within the litigation or potential litigation exception.
The Ombudsman reviewed a closed meeting held by council for the City of Greater Sudbury to discuss a pending appeal to the Ontario Municipal Board (OMB) of a decision of council to deny a severance application. The meeting was closed under the litigation or potential litigation exception. During the meeting, council received information from staff relating to the upcoming OMB hearing. Council also received correspondence from a ministry with respect to the ministry’s position on the severance application. The Ombudsman found that the discussion fit within the litigation or potential litigation exception.
The Ombudsman reviewed a closed meeting held by council for the City of Greater Sudbury to discuss an ongoing appeal before the Ontario Municipal Board (OMB). The meeting was closed under the litigation or potential litigation exception. During the meeting, council received information from staff related to the appeal that might affect the municipality’s response to the appeal. The Ombudsman found that the discussion fit within the litigation or potential litigation exception because council was discussing an ongoing appeal before a tribunal.
The Ombudsman reviewed a closed meeting held by the Planning and Development Committee for the Town of Midland that relied on the litigation or potential litigation exception to discuss a zoning dispute. The committee was considering a lawyer’s letter that identified specific legal action that would be taken if the zoning matter was not resolved. The Ombudsman found that the committee perceived that there was a real possibility of litigation based on the letter and was considering how to respond to the potential for legal action. Therefore, the discussion fit within the litigation or potential litigation exception.
The Ombudsman reviewed a closed meeting held by council for the Township of Tiny that relied on the litigation or potential litigation exception to discuss possible amendments to the zoning by-law. Council’s discussion mentioned the possibility that litigation could arise in the future as a result of the proposed amendments. There was no litigation ongoing or threatened at the time of the meeting. The Ombudsman found that the discussion did not fit within the litigation or potential litigation exception, and instead involved mere speculation.
The Ombudsman reviewed a closed meeting held by council for the Township of Woolwich that relied on the litigation or potential litigation exception to discuss a proposed aggregate pit. During the meeting, the municipality’s solicitor provided an update to council on the status of mediation before the Ontario Municipal Board (OMB) concerning the aggregate pit, and council reviewed draft minutes of settlement. The Ombudsman found that council’s discussion fit within the litigation or potential litigation exception.
The Ombudsman reviewed a closed meeting held by council for the United Townships of Head, Clara and Maria to discuss a harassment complaint filed by the clerk. The meeting was closed under the litigation or potential litigation exception. The Ombudsman found that the discussion fit within the litigation or potential litigation exception because council discussed whether to initiate legal proceedings related to the harassment complaint.
The Ombudsman reviewed a closed meeting held by council for the United Townships of Head, Clara and Maria to discuss a code of conduct complaint made by a member of the public against a member of council. The meeting was closed under the litigation or potential litigation exception. The Ombudsman found that there was no evidence of any current or future legal proceeding related to the code of conduct complaint. Mere speculation that litigation may arise is not sufficient to bring the matter within the litigation or potential litigation exception.
The Ombudsman reviewed a closed meeting held by the Committee of the Whole for the Township of Tiny to discuss the community’s reaction to a court decision involving the municipality. The meeting was closed under the litigation or potential litigation exception. The court decision related to ownership of a stretch of beach located in the municipality. The Ombudsman found that the discussion did not fit within the litigation or potential litigation exception because the committee had not discussed current or pending litigation.
The Ombudsman reviewed a closed meeting held by the Committee of the Whole for the City of London to discuss the Occupy London protest. The meeting was closed under the litigation or potential litigation exception. The Ombudsman found that the committee discussed potential litigation relating to the protest. Therefore, the discussion fit within the litigation or potential litigation exception.
The Ombudsman reviewed a closed meeting held by council for the Town of Amherstburg that relied on the litigation or potential litigation exception to discuss the naming of a recreation complex located in the municipality. The municipality believed that the naming rights for the complex was a matter that could result in future legal action. However, at the time of the meeting, there was no actual evidence of any current or future legal proceedings related to the matter. The Ombudsman found that the discussion did not fit within the litigation or potential litigation exception because there was no reasonable prospect of litigation and any discussion relating to potential litigation was mere speculation.
The Ombudsman reviewed a special closed meeting held by council for the Town of Kearney that relied on the “litigation or potential litigation” exception to discuss a rezoning application. As with any rezoning matter, there was a possibility that council’s decision would be appealed. However, the possibility of appeal is not sufficient to bring a matter within the realm of potential litigation. The Ombudsman found that council lacked the degree of certainty necessary to make the potential for litigation a reasonable prospect. Therefore, the matter did not fit within the exception for litigation or potential litigation.