Case Summary
Ombudsman Report Concerning the Township of Alberton, dated July 2023
In May 2022, lawyers with our office assisted a client in making a closed meeting complaint to the provincial Ombudsman about the Township of Alberton. The Ombudsman investigated this complaint and determined that the Alberton municipal council contravened Ontario's open meeting rules. The Ombudsman's report makes 3 recommendations for the municipality, including that it amend an illegal by-law provision.
Background
This complaint concerned the municipal council's meeting of May 11, 2022, in which our client was removed from the municipality's hybrid in-person/online council meeting. They had attended the meeting virtually, using an iPhone, and had refused to provide their name to the Reeve and Clerk. The Reeve and Clerk demanded that our client identify themself for the meeting record. After declining to do so, our client was removed from the Zoom meeting and technologically prohibited from rejoining the meeting.
Section 239 of the Municipal Act, 2001 requires that municipal council meetings be open to the public (in all but a limited range of circumstances).
Municipalities appoint a closed meeting investigator to receive complaints where they are alleged to have violated the open meeting rules. The Ombudsman serves as the closed meeting investigator for many Ontario municipalities, including Alberton.
The Ombudsman's Report
In July 2023, Ombudsman Paul Dubé issued a report in which he found that by demanding that our client identify themself as a condition of attending the meeting and then removing them from the meeting, the municipal council was in breach of the Act.
The Ombudsman also concluded that the municipality's requirement, in its procedural by-law, that members of the public identify themselves to attend open meetings, was contrary to the Act.
In reaching his conclusion, the Ombudsman cited the Ontario Court of Appeal decision in Langenfeld v. Toronto Police Services Board, 2019 ONCA 716, which considered open meetings in the context of the Charter of Rights and Freedoms. In that case, the court determined that while security measures to attend open meetings may be justified to protect health and safety, requiring individuals to identify themselves may be too intrusive.
While the Township of Alberton claimed to be concerned about so-called "Zoom-bombings" of its meetings, the Ombudsman concluded that requiring the public identification of all attendees at open council meetings was an "overly intrusive measure" that was not "reasonably connected and proportionate to its objective". The Ombudsman also noted that many electronic meeting platforms allow the host to control who is able to speak during a meeting.
In conclusion, the Ombudsman has made 3 recommendations to the municipality:
That all members of council for the Township of Alberton be vigilant in adhering to their individual and collective obligation to ensure that the municipality complies with its open meetings obligations;
That council ensure that the public has unimpeded access to observe open council meetings, whether they are held virtually or in-person or in a hybrid format; and
That council amend its procedural by-law to remove the requirement that members of the public attending open meetings identify themselves for the purposes of the meeting record.
The Ombudsman report is available here.
Judson Howie LLP practices in municipal and political law. Contact us at info@judsonhowie.ca.