Case Summary
Ombudsman Report Concerning the Township of Morley, dated November 23, 2023
In April 2023, lawyers with our office assisted a client in making a closed meeting complaint to the provincial Ombudsman about the Township of Morley. The Ombudsman investigated this complaint and determined that when a majority of council met on December 14, 2022 without public notice, they had contravened Ontario's open meeting rules. The Ombudsman's report makes 3 recommendations for the municipality, including that the council receive appropriate training on the open meeting rules.
The Facts
This complaint concerned the actions of the Reeve and two Councillors, being a majority of the five-member council. These council members met with the municipality's Public Works Superintendent in the garage attached to the municipal office to, according to the report, "discuss additional snowplow operators and levels of service for the upcoming snowfall event." The Public Works Superintendent does not appear to have been given advanced notice of the meeting.
The report indicates that the initial meeting was brief, and after the departure of the Public Works Superintendent to plow roads, the three council members moved into the municipal office and continued their discussions. Inside the municipal office, the Reeve proceeded to call an individual to assist with snow plowing that day. Afterwards, the two Councillors attended a second municipal garage where the additional operator and the Public Works Superintendent were present.
The Law
The complaint and these events engage the following legal framework:
Section 238(1) of the Municipal Act, 2001 (Act) states that a meeting of council or a local board or committee occurs where (i) a quorum of council is present and (ii) the members discuss or deal with a matter in a way that materially advances municipal business or decision-making.
Section 239 of the Act requires that meetings of council and local boards or committees 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 Morley.
What the Report Says
On November 23, 2023, Ombudsman Paul Dubé issued a report in which he found that a meeting of council occurred when 3 of the 5 members of Morley's council met on the morning of December 14, 2022. While the council members appear to have represented that they were meeting as the municipality's Roads Committee, their meeting was nonetheless a quorum of both council and the committee.
The Ombudsman then considered whether the meeting "materially advanced" the business of the municipality. Gatherings that are purely informational in nature, or to discuss procedural options, or to receive updates on information or recent activities do not materially advance the business of the municipality.
However, in this instance, the Roads Committee was directed to meet by council to discuss operational matters. The Roads Committee also contracted an additional snow plow operator to begin work that day. The Ombudsman found that this materially advanced the municipality's business and decision-making.
On this basis, that Ombudsman found that the gathering on December 14, 2022 was a municipal meeting that needed to comply with the open meeting rules. It did not comply because there was no public notice, minute-taking, nor meeting procedures followed. It was an illegal meeting.
What the Report Does Not Say
The report is silent on two matters of note.
First, the report does not comment on whether the attendance at the second municipal garage constituted a meeting within the meaning of the Act. However, it would appear not to be a meeting as there was not a quorum of council present at that location.
Second, the report alludes to the procurement of snow plow operators by the Reeve as being offside the usual procurement processes. Section 270(1)3 of the Act requires municipalities to maintain a policy governing the procurement of goods and services. The report indicates that following the December 14, 2022 illegal meeting, the Clerk-Treasurer "reminded council members of the appropriate procedures related to hiring decisions."
Recommendations from the Ombudsman
In conclusion, the Ombudsman has made 3 recommendations to the municipality:
That all members of council be vigilant in adhering to the obligations to ensure the municipality complies with its responsibilities under the Act;
That council ensures that any discussions where a quorum of members is present that materially advances the municipality's business is recognized as a meeting that is subject to the open meeting rules; and
That council receive appropriate training on the open meeting provisions of the Act and their application to committees of the municipality.
The Ombudsman report is available here.
Judson Howie LLP practices in municipal and political law. Contact us at info@judsonhowie.ca.