Report to/Rapport au :

Corporate Services and Economic Development Committee

Comité des services organisationnels et du développement économique

and Council / et au Conseil

5 November 2007 / le 5 novembre 2007

Submitted by/Soumis par : M. Rick O'Connor, City Solicitor/Procureur de la ville

Contact Person/Personne ressource : M. Rick O'Connor, City Solicitor/ Procureur de la ville

Legal Services/Services juridiques

(613) 580-2424 x 21215, Rick.OConnor@ottawa.ca

City Wide/à l'échelle de la Ville

Ref N°: ACS2007-CMR-LEG-0007

SUBJECT:	BILL 130 - A REVIEW OF OTTAWA'S AGENCIES, BOARDS, COMMITTEES AND COMMISSIONS

OBJET :	Projet de loi 130 – Examen des services, des conseils, des comités et des commissions d’Ottawa

REPORT RECOMMENDATION

That the Corporate Services and Economic Development Committee and Council receive this report for information.

RECOMMANDATION DU RAPPORT

Que le Comité des services organisationnels et du développement économique et le Conseil prennent connaissance de ce rapport.

EXECUTIVE SUMMARY

Assumptions and Analysis:

Bill 130, the Municipal Statute Law Amendment Act, 2006, came into effect, with some minor exceptions, on January 1^st, 2007. This omnibus bill included a number of amendments to the Municipal Act, 2001 which provides Ontario’s 444 municipalities with broad powers and duties. Under Section 10 of the Municipal Act, 2001, as amended by Bill 130, single-tier municipalities have eleven areas of broad authority including:

Governance structure of the municipality and its local boards.
Accountability and transparency of the municipality and its operations and of its local boards and their operations.

3. Financial management of the municipality and its local boards.

Further, the Municipal Act, 2001 also requires that local boards have a procedure by-law, including public notice of meetings, as well as “adopt and maintain” policies with respect to: sale and other disposition of land; hiring of employees; and, procurement of goods and services.

As such, it is necessary to establish the meaning of “local board” under the revised Municipal Act, 2001 and subsequently determine which entities fall into the category of “local board”. “Local board” is primarily defined in Subsection 1 (1) as follows:

“local board” means a municipal service board, transportation commission, public library board, board of health, police services board, planning board, or any other board, commission, committee, body or local authority established or exercising any power under any Act with respect to the affairs or purposes of one or more municipalities, excluding a school board and a conservation authority.

The Act includes further provisions which expressly include or exclude specific boards. For example, municipal service boards and a board of management of a business improvement area and to be “a local board of the municipality for all purposes.”

The Legal Services Branch has reviewed the provisions in various statutes that provide a definition of a “local board”, as well as relevant case law, in order to determine if an entity falls within the category of “local board”.

Financial Implications:

There are no financial implications associated with receiving this report for information.

RÉSUMÉ

Hypothèses et analyse :

Le projet de loi 130, Loi de 2006 modifiant des lois concernant les municipalités, est entré en vigueur, avec quelques exceptions mineures, le 1^er janvier 2007. Ce projet de loi omnibus comprenait un certain nombre de modifications à la Loi de 2001 sur les municipalités, qui dote les 444 municipalités de l’Ontario de vastes pouvoirs et fonctions. En vertu de l’article 10 de la Loi de 2001 sur les municipalités, modifiée par le projet de loi 130, les municipalités jouissent d’un vaste pouvoir dans onze secteurs dont les suivants :

la structure de gouvernance de la municipalité et de ses conseils locaux,
la responsabilisation et la transparence de la municipalité et de ses activités ainsi que de ses conseils locaux et de leurs activités,

3. la gestion financière de la municipalité et de ses conseil locaux.

En outre, la Loi de 2001 sur les municipalités exige également que les conseils locaux aient un Règlement de procédure, y compris l’avis public des réunions, et qu’ils « adoptent et conservent » des politiques applicables à la vente et à la disposition de biens-fonds, à l’engagement d’employés et à l’approvisionnement en biens et en services.

Par conséquent, il est nécessaire d’établir la signification de « conseil local » en vertu de la Loi de 2001 sur les municipalités révisée et de déterminer par la suite les entités qui entrent dans la catégorie de « conseil local ». « Conseil local » est principalement défini au paragraphe 1 (1) comme suit :

Un « conseil local » est une commission de services municipaux, une commission des transports, un conseil d’administration de bibliothèque publique, un conseil de la santé, une commission de services policiers, une commission d’organisation ou tout autre conseil, comité, ou toute autre commission, entité ou autorité locale ayant été établi ou qui exerce des pouvoirs en vertu d’une loi en ce qui a trait aux affaires ou aux fins d’une ou de plusieurs municipalités, à l’exclusion d’un conseil scolaire et d’un office de protection de la nature.

La Loi comporte d’autres dispositions qui incluent ou excluent formellement certains conseils. Par exemple, les commissions de services municipaux et un conseil de gestion d’une zone d’amélioration commerciale et pour être « un conseil local de la municipalité à toutes les fins ».

La Direction des services juridiques a examiné les dispositions de divers statuts qui donnent une définition d’un « conseil local », ainsi que la jurisprudence applicable, afin de déterminer si une entité entre dans la catégorie de « conseil local ».

Répercussions financières :

La réception de ce rapport à titre d’information n’entraîne aucune répercussion financière.

BACKGROUND

The Municipal Act, 2001 came into force January 1, 2003. That Act was revised after the enactment of Bill 130, the Municipal Statute Law Amendment Act, 2006, on January 1^st, 2007, although some provisions will come into effect on January 1^st, 2008. The first objective of this report is to establish the meaning of “local board” under the revised Municipal Act, 2001. This shall be accomplished by providing the definition of “local board” under various statutes, and then highlighting all the provisions in the Municipal Act, 2001 that pertain to it. The second objective is to establish the test to be applied in order to determine which entities fall into the category of “local board”. The latter will be accomplished by closely examining the relevant case law as well as other determining factors. Finally, a list will be provided which shall enumerate every local board within the City of Ottawa (the “City”).

Once a list has been established enumerating all local boards within the City, these entities will be apprised of this determination that they are considered “local boards” under the Act, and as such are required to fulfill a number of statutory obligations including the necessity to have a procedure by-law and be subject to the City’s Meetings Investigator. In this respect, many of the provisions in the revised statute will have a significant impact on the City’s various local boards.

DISCUSSION

“Local Board” – Statutory Definitions

The definition of a “local board” is referred to in number of statutory sources, including the City of Ottawa Act, 1999; the Municipal Act, 2001; the Municipal Affairs Act; the Municipal Conflict of Interest Act; and the Municipal Elections Act. However, these definitions vary significantly with respect to the scope of each statute. As such, it is necessary to examine each definition to determine whether or not a particular local board is subject to the respective Act. For example, a conservation authority is expressly exempted from various definitions of the term “local board” as defined in both the Municipal Act, 2001 and the City of Ottawa Act, 1999. However, it is expressly included in the definition of “local board” as set out in the Municipal Conflict of Interest Act. These types of disparities in the definition of “local board” mandate a detailed analysis of both the City of Ottawa Act, 1999 and the Municipal Act, 2001 as revised by Bill 130 in order to clarify two key issues:

(1) Is the entity a “local board”? and if so,

(2) What mandatory provisions arising from the Municipal Act, 2001 apply to it?

(1) City of Ottawa Act, 1999

Subsection 1(1) of the City of Ottawa Act, 1999 provides as follows:

“local board” means a public utility commission, municipal service board, transportation commission, public library board, board of park management, board of health, polices services board or other body established or exercising power under any general or special Act with respect to any of the affairs of an old municipality or of the city, but does not include,

(a) the transition board,

(b) a children's aid society,

(d) a school board.

For the purposes of this transitional Act, the list of “local boards” was relatively modest and straightforward. However, moving from this specific enabling statute to the more general Municipal Act, 2001 provides for a broader definition of “local board” and establishes a number of mandatory requirements for these entities to undertake.

(2) Municipal Act, 2001

Subsection 1(1) of the revised Municipal Act, 2001 provides as follows:

Specific Municipal Act, 2001 Provisions Regarding “Local Boards”

In order to ensure a comprehensive explanation of the meaning of “local board” within the revised Municipal Act, 2001, it is necessary to identify the key provisions that specifically refer to “local boards”. While not an exhaustive list, the following clauses are the relevant provisions under the Act in addition to Subsection 1 (1) above. In effect, the broad definition in Subsection 1 (1) of the Act is further refined by the following provisions:

Ø Section 10 provides that single-tier municipalities may pass by-laws in eleven areas of broad authority including:

o Governance structure of the municipality and its local boards.

o Accountability and transparency of the municipality and its operations and of its local boards and their operations.

o Financial management of the municipality and its local boards.

For the purposes of Section 10, the definition of “local board” expressly excludes the following:

a) a society as defined in Subsection 3(1) of the Child and Family Services Act;

b) a board of health as defined in Subsection 1(1) of the Health Protection and Promotion Act;

c) a committee of management established under the Homes for the Aged and Rest Homes Act;

d) a police services board established under the Police Services Act;

e) a board as defined in Section 1 of the Public Libraries Act; or,

f) a corporation established in accordance with Section 203 (e.g. the Ottawa Lands Corp.).

Section 197 of the Act defines a municipal service board to be “a local board of the municipality for all purposes.”

Ø Section 204 of the Act states that a board of management of a business improvement area to be a “local board of the municipality for all purposes.”

Ø Section 216 of the Act addresses a municipality’s statutory rights with respect to changing or dissolving “local boards”, however, the list of statutory “boards” identified in Subsection 10 (6) are similarly excluded for the municipality’s power in this provision including an appeal body established under Section 8.1 of the Planning Act.

Ø Sections 223.1 to 223.24 (i.e. Part V.1) establish a municipality’s ability to implement various accountability and transparency initiatives (including codes of conduct and integrity officers like the Auditor General) for both the municipality and its “local boards”. However, the six statutory bodies identified in Subsection 10 (6) are similarly excluded from these provisions.

Ø Section 238 requires the City and its local boards to pass a procedure by-law for governing the calling, public notice, place and proceedings of meetings. However, the definition of “local board” expressly excludes police service boards or public library boards for Sections 238, 239 and 239.1-239.2

Ø Sections 239, 239.1 and 239.2 establish the statutory requirements with respect to open and closed meetings and (effective January 1^st, 2008) the appointment of a Meetings Investigator to investigate complaints as to whether or not a municipality or one of its local boards has met either the statutory requirements or its own procedure by-law regarding closed meetings.

Ø Sections 269 and 270 of the Act provide a definition of “local board” in the context of policies local boards are required to adopt and maintain with respect to the hiring of employees, the procurement of goods and the disposition of land. The definition of “local board” is set out as follows:

a) A local board as defined in Section 1 [i.e. a municipal service board, transportation commission, public library board, board of health, police services board, planning board, or any other board, commission, committee, body or local authority established or exercising any power under any Act with respect to the affairs or purposes of one or more municipalities, excluding a school board and a conservation authority], excluding a police services board and a hospital board;

b) An area services board, a local services board, a local roads board and any other board, commission or local authority exercising any power with respect to municipal affairs or purposes in unorganized territory, excluding a school board, a hospital board and a conservation authority;

c) A district social services administration board;

d) A local housing corporation described in Section 23 of the Social Housing Reform Act, 2000; and

e) Any other prescribed body performing a public function.

Ø Section 280 of the Act addresses the issue of insurance

Ø Section 283(3) of the Act defines “local board” in the context of remuneration and expenses

Ø Section 390 to 400 of the Act defines “local board” with respect to fees and charges

All of the above provisions of the Act are contained in Appendix “A” of this report in their entirety.

In addition to the six specific local boards identified in Subsection 1 (1) of the Municipal Act, 2001, that provision also encompasses other possible “local boards” more generally characterized as, “any other board, commission, committee, body or local authority established or exercising any power under any Act, with respect to the affairs or purposes” of the municipality. At common law, the courts have examined this phrase and identified the following criteria that may be applicable in order to determine whether a particular entity is a “local board” pursuant to the broad language in Subsection 1 (1) of the Act:

Ø A direct link with the municipality must be found (either by way of legislation or authority from the municipality);

Ø The entity must be carrying on “the affairs of the municipality” (as set out in the definition of the Act);

Ø There must be a connection to or control by the municipality; and

Ø There must be an element of autonomy.

Furthermore, the legal analysis interpreting which entities may or may not be covered by the more general wording for a “local board” in Subsection 1 (1) of the Act is set out in detail at Appendix B.

“Local Boards” in Ottawa

(i) Ottawa Police Services Board

The Ottawa Police Services Board is one of the entities that is specifically mentioned in Subsection 1(1) of the Municipal Act, 2001, which expressly states that it is as a “local board” for the purposes of that Act. Furthermore, pursuant to the City of Ottawa Act, 1999, when the amalgamated City was created effective January 1, 2001, all the police services boards of the former municipalities were dissolved and all of their assets and liabilities accrued to the Ottawa Police Services Board.

Therefore, this entity qualifies as a “local board”. However, as noted earlier, police services boards are subsequently exempted from the following specific statutory requirements in the Act:

· Subsection 10 (6);

· Subsection 216 (3);

· Section 223.1;

· Subsection 238 (1); and

· Section 269.

(ii) Ottawa Public Library Board

The Ottawa Public Library Board is also caught specifically, under Subsection 1(1) of the revised Municipal Act, 2001. However, in a manner similar to the Ottawa Police Services Board, the City’s public library board is expressly exempt from the following statutory obligations:

· Subsection 10 (6);

· Section 223.1

· Subsection 238 (1); and

· Section 269.

(iii) Ottawa Municipal Campsite Authority

The Ottawa Municipal Campsite Authority (“OMCA”) is a local authority and does satisfy the criteria required to constitute a local board under the Act. While Subsection 1(1) of the Act does not specifically refer to this entity, it does stipulate that a local board consists of: “any local authority established or exercising power under any Act with respect to the affairs or purposes” of a municipality.

The OMCA also has a municipal/local character. This entity was formerly known as the Nepean Campsite Authority, which was reconstituted upon amalgamation of the City of Ottawa on January 1, 2001 as the OMCA. The OMCA’s purpose is of a local/municipal character in that it rents out campsites on a short-term basis in the summer months to allow residents of the City of Ottawa as well as tourists to camp.

(iv) Pineview Municipal Golf Club Board of Management

The Pineview Municipal Golf Club Board of Management (“Pineview”) satisfies the criteria to be considered a local board under the Act. Pineview is a non-profit corporation. When it was established in 1976, the originating documents contemplated that Pineview would be directed by a board of management under the former Municipal Act, and that this board would administer the affairs of the municipal corporations involved.

This entity also satisfies the selection process for “local boards” under the Act. The deeming By-Law stipulates that the board of management is composed of eight members who are elected by City Council including Councillors. Further, the board of management has decision-making capabilities and holds regular meetings and keeps proper minutes and records of the meetings.

(v) Cumberland Village Heritage Museum Board

The Cumberland Village Heritage Museum Board (the “Cumberland Museum”) satisfies the criteria required in order to qualify as a local board. The Cumberland Museum was established under Township of Cumberland By-law 7-84, and therefore has a direct link with that former municipality.

The By-Law stipulates that the Council of the former Township of Cumberland was authorized to establish a board of management to operate a museum on behalf of the municipality, thus satisfying the requirement for the municipality to have exclusive authority and jurisdiction over the entity. Further, By-Law 7-84 states that: “subject to such limitations and restrictions as Council may from time to time impose, the restoration, maintenance, control, operation and management of the Museum is entrusted to a board of management”. Case law suggests that, in order to qualify as a local board, an entity must have decision-making capabilities in its day-to-day operations, and that this element of autonomy exists despite the municipality’s overall control of the entity. In this regard, the Cumberland Museum meets those criteria.

The By-Law further states that the Cumberland Museum shall adopt policies for the admission of the public to the Museum, thereby satisfying the criteria for having been constituted for public and not for private purposes, having as a primary purpose the provision of services to the inhabitants of the municipality.

The Appointment Policy also satisfies the case law criteria for “local board”. The By-law stipulates that the board shall consist of persons appointed by Council of the former Township of Cumberland. The Appointment Policy also states that two members of City Council should be appointed to serve as the selection panel for the Cumberland Museum. Furthermore, a City Councillor has been appointed to the board as the Council representative.

(vi) Nepean Museum Board

The Nepean Museum Board (the “Nepean Museum”), incorporated as a non-profit organization, was created to collect, preserve, research, exhibit and interpret works of man and nature in Nepean, and thereby stimulate greater interest in, knowledge of and enthusiasm for the former City among both residents and visitors. As such, the Nepean Museum satisfies the requirement to have a public purpose as opposed to a private one, whose nature is of a local/municipal character. Further, a City Councillor sits on the board, thus satisfying the selection process for board members under the Act.

Finally, as the City remains one of the primary funders of the Nepean Museum, this satisfies the criteria that the City has control over the entity.

As such, the Nepean Museum Board is a “local board” for the purposes of the Municipal Act, 2001.

(vii) Carp Airport Authority

On March 14, 1997 the former Regional Municipality of Ottawa-Carleton acquired the airport from the Federal Government subject to a lease, dated December 31, 1991, granted by the Department of Transport. Subsequently, the airport was leased to the Carp Airport Authority (formerly the West Carleton Airport Authority). The Authority is a non-share corporation incorporated under the provisions of the Ontario Business Corporations Act. Pursuant to a written lease with the City of Ottawa, the Authority operates a municipal airport in the former Township of West Carleton. .

Pursuant to a tri-partite agreement between the General Manager, the City and the Authority, the City pays a fixed annual sum to the General Manager of the Carp Airport Authority and to be responsible for its day to day administration subject to the direction of the Authority. One of the obligations on the General Manager is to regularly report to the City as to the status of the administration of the Airport.

Furthermore, Section 70 of the Municipal Act, 2001 provides the authority to the City to operate an airport in the municipality.

Having regard to the authority granted to the City under the Act as well as the definition of “local board” set out in Subsection 1(1) of the Municipal Act, 2001, as well as the contractual relationships between the City and the Authority, the Carp Airport Authority should be considered as falling within the definition of a “local board” under the revised Act.

(viii) City of Ottawa Superannuation Fund

The Board of the City of Ottawa Superannuation Fund (the “Fund”) meets the test for being a local board under the Act. The Fund was established under provincial law, rather than federal legislation. The purpose of the Fund is to carry on the affairs of the municipality, as it deals with municipal pensions for people who were employees of the City of Ottawa prior to 1966 (pre-OMERS). The Fund has a degree of autonomy as well as some decision-making capabilities. The Fund is under municipal control, although it must still comply with federal and provincial laws regarding pension benefits and income tax. With respect to the process for selection of board members, the Fund adheres to the appointment policy whereby three board members are appointed by City Council and other board members are appointed by various other bodies.

Therefore, the Board of the City of Ottawa Superannuation Fund is a “local board” for the purposes of the Municipal Act, 2001.

(ix) Crime Prevention Ottawa

The entity known as Crime Prevention Ottawa (“CPO”) likely falls within the definition of “local board’ in Subsection 1 (1) of the Act. Briefly, CPO was established in 2005 by City Council as a quasi-independent body and is led by a board of directors composed of community leaders and Members of Council. CPO has a distinctly local character as it is an initiative that contributes to crime reduction and enhanced community safety in Ottawa through collaborative evidence-based crime prevention. It also provides funding to community organizations to address issues related to crime prevention. The purpose of the funding is to support community initiatives that address gaps in service that help prevent crime and victimization within the community and respond to identified crime priorities within the City. Although CPO enjoys a certain level of autonomy in its day-to day operations, it nonetheless has a connection to the City in that it prepares an annual report to City Council and receives funding and resources via the City’s annual budget process.

(x) Business Improvement Areas

As previously noted, business improvement areas (“BIAs”) are expressly characterized as “local boards” under the Act. Section 204(2.1) states that” “a board of management [of a BIA] is a local board of the municipality for all purposes.” The following is a list of the 13 BIA’s currently existing in Ottawa:

Bank Street BIA

Barrhaven BIA

Byward Market BIA

Carp Village BIA

Heart of Orleans BIA

Manotick BIA

Preston Street BIA

Downtown Rideau Improvement Area BIA

Somerset Chinatown BIA

Somerset Village BIA

Sparks Street Mall Authority/Sparks Street Mall BIA

Vanier BIA

Westboro BIA

(xi) Property Standards Committee

The Property Standards Committee is likely a “local board” pursuant to Subsection 1 (1) of the Municipal Act, 2001. The City’s Property Standards By-law 2005-207 sets out the minimum standards for the care and maintenance of residential and non-residential properties for health and safety purposes, in accordance with the Building Code Act. It also provides for the establishment of the Property Standards Committee to hear appeals from property owners or landlords served with an Order for contravention of those standards. Thus, the Committee likely falls within the definition of “local board” in the Act in that it is “established or exercising any power under any Act with respect to the affairs or purposes of [a] municipality”.

The Committee also has a direct connection to the City. Although no Members of Council serve on it, two Members of Council are appointed to serve on a selection panel to appoint citizen members to the Committee and the members receive an honorarium from the City for each appeal heard. Furthermore, the cost of advertisement and public consultation for the recruitment of Committee members is provided by the City Clerk Branch’s operating budget and administrative support for the Committee is provided from the By-law Services operating budget.

(xii) Ottawa Community Housing Corporation (“OCHC”)

Subsection 23(3) of the Social Housing Reform Act, 2000 states that a local housing corporation shall be deemed not to be a local board of a municipality. However, Section 269 of the Municipal Act, 2001 which sets out which local boards are required to adopt and maintain certain policies explicitly includes “a local housing corporation described in Section 23 of the Social Housing Reform Act, 2000”. Since Section 269 of the Municipal Act, 2001 was enacted subsequent to Section 23 of the Social Housing Reform Act, 2000, the Municipal Act, 2001 prevails.

Therefore, the OCHC is only considered a “local board” under the Municipal Act, 2001 for the purposes of Sections 269 and 270. This means that the OCHC is required to adopt and maintain policies with respect to: the sale and disposition of land; its hiring of employees; and its procurement of goods and services.

(xiii) Municipal Service Boards

Municipalities in Ontario are permitted under Section 195 of the Act to establish municipal service boards to control and manage a broad range of municipal services such as public utilities; waste management; transportation systems; parking; culture; parks and recreation; and heritage facilities. Pursuant to Section 197(3) of the Act, municipal service boards are deemed to be “local boards of the municipality for all purposes.” At the present time, the City of Ottawa has no municipal service boards.

Entities that Do Not Qualify as “Local Boards” Under the Act

In contrast to the above-noted “local boards”, the following are those entities that do not constitute “local boards” under the Municipal Act, 2001.

(i) Hydro Ottawa Holding Inc.

Hydro Ottawa Holding Inc. is not a local board under the Act. It is a privately held corporation incorporated under the Ontario Business Corporations Act, whose sole shareholder is the City of Ottawa. Moreover, its subsidiaries Hydro Ottawa Limited and Energy Ottawa Inc. are also not subject to the provisions of the Municipal Act, 2001.

Briefly, the Electricity Act, 1998, allowed municipalities to incorporate a corporation under the Business Corporations Act for the purpose of generating, transmitting, distributing or retailing electricity. However, Subsection 142 (6) of the Electricity Act, 1998 provides that such a corporation “…shall be deemed not to be a local board, public utilities commission or hydro-electric commission for the purposes of any Act”.

(ii) Osgoode Care Centre

The Osgoode Care Centre (“OCC”) is a non-profit, charitable corporation, which essentially provides a local facility to accommodate elderly people requiring nursing home care. The OCC addresses community concerns to meet the needs of the aging population in the City of Ottawa. The entity therefore, meets the test of “having a local or municipal character” required to be considered a local board under the Act.

Article 3 of the OCC By-Law states that the OCC board of directors shall be composed of: “one director who shall be an elected member of City of Ottawa Council”. Members are appointed to the board at the OCC’s annual meetings.

Given the other criteria required in order to fall under the category of “local board” under the Act, it would appear that the OCC does not qualify. The dissolution process for instance does not meet the requirement as set out in the Act. The OCC is not an entity that requires a City By-Law in order to dissolve. Furthermore, the OCC By-Law stipulates that the OCC board of directors may exercise all powers and may make any rules necessary for the management and operation of the OCC as required by the Corporations Act and consistent with the OCC By-Law. There is no link to, or control by, the City of Ottawa. Further, the OCC was not created under provincial legislation or By-Law, and is completely independent of the municipality in terms of operations and control of the OCC. In light of the above, the Osgoode Care Centre does not qualify as a “local board” under the Municipal Act, 2001.

(iii) Mohr’s Landing/Quyon Port Authority

The by-law for the Mohr’s Landing/Quyon Port Authority (“Port Authority”) calls for the appointment of two directors to be elected by the City of Ottawa. The Appointment Policy passed by City Council applies to this entity as with the above-mentioned ones. Therefore, the selection process meets one of the criteria for a local board under the Act.

Furthermore, the Port Authority is a valuable local transportation link used extensively by residents of the area. Therefore, this entity does appear to have been established in order to “exercise the affairs of the municipality”, thus satisfying another factor with respect to this entity being a local board under the general language in Subsection 1 (1) of the Act. At first glance, it would appear that the Port Authority is a local board.

However, upon further analysis, it is suggested that the Mohr’s Landing/ Quyon Port Authority does not fall under the category of “local board” under the Municipal Act, 2001. To begin with, the Port Authority is a federally incorporated entity comprised of board members elected by both the City of Ottawa and the Municipality of Pontiac, Quebec. The ferry service itself operates over a navigable waterway, between two different provinces. The property and business of the Port Authority is managed by the board of directors, which has a high degree of autonomy and decision making authority. As such, it is an inter-provincial entity, which lacks a distinctly local/municipal character.

Furthermore, the operator of the ferry service receives all the user charges, as none are given to the municipalities. Further, as of September 16, 1999, the Port Authority began to receive funding from the Government of Canada for a period of 20 years. The federal funding was obtained as a result of the divestiture of various ferry landings by the federal government, including Mohr’s Landing and Quyon Port.

Finally, there is no mention of whether a municipal by-law is required to dissolve the Port Authority. However, in the event of a dissolution, all of the Port Authority’s remaining assets shall be distributed to the two municipalities in equal portions, and the Mohr’s Landing port facilities shall become the property of the City of Ottawa, while the Quyon port facilities shall become the property of the Municipality of Pontiac. For all of the above reasons, it is determined that this entity does not qualify as a local board under the Act.

(iv) Children’s Aid Society Board of Directors

The Children’s Aid Society Board of Directors (“CAS Board”) is regulated by the Ontario Ministry of Community, Family and Children’s Services (the “Ministry”). Across Ontario, approximately 60 societies were established and governed by the Child and Family Services Act (the “CFSA”). While Section 7(1)(b) of the Act empowers the Minister to enter into agreements with municipalities for the provision of services, the Ottawa CAS is funded and controlled by the Government of Ontario and not the City. With respect to the provision of services, Section 7(1) of the Act states that the minister may: “provide services and establish, operate and maintain facilities for the provision of services and may make payments for those services and facilities out of legislative appropriations”. Funding under Section 7(2) of the CFSA states that: “The Minister may make grants and contributions, out of legislative appropriations, to any person, organization or municipality for consultation, research and evaluation with respect to services and for the provision of services”. Therefore, as the various CAS Boards are governed, controlled and funded by the Province and not the municipalities in which they are located, they do not qualify as a “local board” under the Municipal Act, 2001.

Further, Section 20(2) of the CFBA defines a CAS as follows:

20 (2) Children’s Aid Society deemed to be a local board - Children’s Aid society shall be deemed to be a local board of each municipality in which it has jurisdiction for the purposes of the Ontario Municipal Employees Retirement System Act and the Municipal Conflict of Interest Act.

The above provision states that the CAS is only a “local board” for the purposes of the Ontario Municipal Employees Retirement System Act and the Municipal Conflict of Interest Act. Since it is only these two statutes that are expressly named, it is unlikely that the Legislature intended the CAS Boards to be considered a “local board” for the purposes of the Municipal Act, 2001. This conclusion is further borne out by a more detailed examination of the respective definitions for a “local board” in the revised Municipal Act, 2001 as previously referenced in this report. For example, while the definition of local board in Subsection 1 (1) does not mention the Children’s Aid Society, the definitions of local board in Subsection 10 (6), Section 216, and Section 223.1 all expressly exclude a CAS.

(v) Advisory Committees

Given all of the above criteria, it would appear at first glance that the City’s various Advisory Committees may also fall under the general definition of “local board” as defined in the Municipal Act, 2001. However, there is one fundamental difference between Advisory Committees and the above-mentioned entities that do qualify as local boards under the Act. Advisory Committees act as consultative groups whose primary role is to provide advice on specific issues. As such, they do not have decision-making abilities. The definition of “local board” set out in Subsection 1(1) of the Act states that, in order to be considered a local board, an entity must be “established or exercising any power under the Act with respect to the affairs or purposes of one or more municipality”. Therefore, it is determined that the City’s Advisory Committees do not fall under the category of “local board” pursuant to the Act.

(vi) The Ottawa Partnership

The Ottawa Partnership (“TOP”) does not qualify as a “local board” under the Act. TOP was established in order to prepare a Strategic Economic Development Plan (the “Plan”) for the City. Essentially, TOP receives and reviews proposals for economic development initiatives and then submits a report to City Council recommending the proposals that offer the best opportunity to achieve the objectives of the Plan. TOP essentially acts as a consultative group whose primary role is to provide advice on specific issues, much like the above-mentioned Advisory Committees. Consequently, this entity does not possess the characteristics of autonomy and decision-making abilities that are required in order to be considered a local board under the Act.

(vii) Ottawa Tourism and Convention Authority

The Ottawa Tourism and Convention Authority (“OTCA”) is a non-profit agency that assists the City in the delivery of the Economic Development Program as it relates to local tourism development in Ottawa. Essentially, the OTCA undertakes various initiatives in building the tourism industry in Ottawa as it develops promotional programs and services to attract tourism business to the City. Therefore, while the OTCA does have a local/municipal character, however, it remains an independent entity that is not under the control of the City. As such, the OTCA does not qualify as a “local board” under the Act.

(viii) Conservation Authorities

Conservation authorities are expressly identified as not being “local boards” under the definition found in Subsection 1 (1) of the Municipal Act, 2001. Therefore, the Mississippi Valley Conservation Authority, the Rideau Valley Conservation Authority and the South Nation Conservation Authority are not considered “local boards”.

This conclusion is further borne out by the respective definitions of “local board” in the Municipal Act, 2001. For example, Subsection 1 (1) and Section 269 both expressly exclude a conservation authority from the definition of local board.

(ix) Ottawa Centre for Research and Innovation

The Ottawa Centre for Research and Innovation (“OCRI”) is unlikely to be a “local board” under the Municipal Act, 2001. The OCRI is a non-profit partnership organization that is incorporated under the Canada Corporations Act as a federal corporation without share capital. It is described on its website as a “member-based economic development corporation for fostering the advancement of the region’s globally competitive knowledge-based institutions and industries.” OCRI currently has approximately 625 member companies.

Despite the fact that OCRI has a municipal character, Members of Ottawa City Council sit on OCRI’s board of directors and OCRI receives an annual operating grant from the City of Ottawa, there are other factors which lead to the conclusion that OCRI would not be considered a “local board”. Approximately 80% of OCRI’s annual operating budget is generated from a variety of other sources such as federal and provincial governments, membership fees, professional development programs and private sector contributions. Furthermore, although OCRI provides the City with quarterly reports regarding its operations pursuant to the partnership funding agreement entered into with the City, OCRI acts independently of the City and Council.

(x) Almonte Hospital Board

The Almonte Hospital Board is not a “local board” under the Municipal Act, 2001. The definition of “local board” found in Subsection 1 of the Act explicitly includes a “board of health” but does not include a “hospital board”. Further evidence that a hospital board is not a local board can be found in Section 269 of the Act. That provision, which deals with policies that must be adopted by local boards, includes a definition of “local board” that explicitly excludes “hospital boards”. In a similar fashion, Section 390, which defines “local board” for the purposes of dealing with fees and charges, also expressly excludes “hospital boards”. Finally, in 1998, the Ontario Court, General Division reviewed the issue of whether or not a hospital board was a local board for the purposes of the Municipal Affairs Act (i.e. the general phrase used in the statute was largely the same as in the Municipal Act, 2001). In Nicholls v. Merrickville-Wolford (Village) the court determined that the hospital board was not a “local board under that Act.

(xi) Ottawa-Gatineau Film and Television Development Corporation

The Ottawa-Gatineau Film and Television Development Corporation (“Film and Television Development Corporation”) does not qualify as a “local board” under the Act. The Film and Television Development Corporation is a non-profit corporation without share capital that was incorporated in 2003 under the Canada Corporations Act. As a federal corporation, it was formally established as a 3-year pilot project to promote the growth of film and television production in Ottawa and Gatineau. The Film and Television Development Corporation issues permits to film productions in the Ottawa-Gatineau region and also offers members of the industry technical and logistical film expertise.

Although a Member of City Council sits on the board of directors, the Film and Television Development Corporation acts independently of both Ottawa and Gatineau. The fact that it is essentially an inter-provincial entity also diminishes its local/municipal character.

(xii) Central Canada Exhibition Association

The Central Canada Exhibition Association (“CCEA”) does not satisfy the criteria required in order to qualify as a “local board” under Subsection 1 (1) of the Act. The CCEA works to encourage awareness of agriculture and related industries within the community. It does not, however, “exercise any power under any Act with respect to the affairs of the municipality” as stipulated in the definition of “local board” under the Act. Although there are Members of Council who are appointed to the CCEA board of directors, the CCEA lacks the connection to the City that is necessary to meet the “local board” common law test.

CONSULTATION

No public consultation was required. However, City staff met with representatives of the B.I.A.s as well as the Chairs and Vice Chairs of the Advisory Committees to advise them of their local board status.

FINANCIAL IMPLICATIONS

There are no financial implications in receiving this report.

SUPPORTING DOCUMENTATION

Appendix “A” – Municipal Act, 2001 “Local Board” Provisions

Appendix “B” – List of “Local Boards” within the City of Ottawa

Appendix “C” – Matrix of Local Boards

Appendix “D” – Case Law Regarding “Local Boards”

DISPOSITION

The Legal Services Branch will further review the City’s various agencies, boards, committees and commissions as part of the Mid-term Governance Review to further clarify which entities are, or are not “local boards” pursuant to the Municipal Act, 2001.

APPENDIX A

Municipal Act, 2001 “Local Board” Provisions

· Section 1 (1)

· Section 10

10. (1) A single-tier municipality may provide any service or thing that the municipality considers necessary or desirable for the public. 2006, c. 32, Sched. A, s. 8.

By-laws

(2) A single-tier municipality may pass by-laws respecting the following matters:

1. Governance structure of the municipality and its local boards.

2. Accountability and transparency of the municipality and its operations and of its local boards and their operations.

4. Financial management of the municipality and its local boards.

· Section 197 (3)

(3) A municipal service board is a local board of the municipality for all purposes. 2006, c. 32, Sched. A, s. 87.

· Section 204 (2.1)

Local board status

(2.1) A board of management is a local board of the municipality for all purposes. 2006, c. 32, Sched. A, s. 89.

· Section 216

216. (1) Without limiting sections 9, 10 and 11, those sections authorize a municipality to dissolve or change a local board. 2006, c. 32, Sched. A, s. 90.

Conflict

(2) In the event of a conflict between a by-law described in subsection (1) and any provision of this or any other Act, excluding this section and sections 194 to 202, or in the event of a conflict with a regulation made under any other Act, the by-law prevails. 2006, c. 32, Sched. A, s. 90.

Restriction

(3) Despite subsection (1), a municipality shall not, in accordance with subsection (1), dissolve or change a local board that is,

(a) a society as defined in subsection 3 (1) of the Child and Family Services Act;

(b) a board of health as defined in subsection 1 (1) of the Health Protection and Promotion Act;

Note: On a day to be named by proclamation of the Lieutenant Governor, clause (c) is amended by the Statutes of Ontario, 2007, chapter 8, subsection 218 (4) by striking out “Homes for the Aged and Rest Homes Act” and substituting “Long-Term Care Homes Act, 2007”. See: 2007, c. 8, ss. 218 (4), 232 (2).

(c.1) an appeal body established under section 8.1 of the Planning Act;

(d) a police services board established under the Police Services Act;

(e) a board as defined in section 1 of the Public Libraries Act;

(f) a corporation established in accordance with section 203;

(g) such other local boards as may be prescribed. 2006, c. 32, Sched. A, ss. 90, 91 (2).

Exception, City of Greater Sudbury

(4) Despite subsection (3), the City of Greater Sudbury may, in accordance with subsection (1), change the number of members it appoints as its representatives on the board of health of the Sudbury and District Health Unit, subject to the following rules:

1. The number shall not be smaller than two or larger than seven.

2. At least one of the members shall also be a member of the council of the City.

3. At least one of the members shall not be a member of the council of the City. 2006, c. 32, Sched. A, s. 90.

Scope of power to change a local board

(5) Without limiting sections 9, 10 and 11, the power of a municipality to change a local board under those sections includes the power to pass by-laws with respect to,

(a) the matters described in paragraphs 1 to 7 of subsection 196 (1), subject to the restrictions set out in section 196;

(b) the assumption of a power or duty of the board, but if the power or duty was delegated to the board by the municipality, the municipality cannot assume the power or duty if it cannot revoke the delegation;

(d) the restriction or expansion of the mandate of the board. 2006, c. 32, Sched. A, s. 90.

Dissolution, etc., of joint board

(6) If a municipality passes a by-law in accordance with subsection (1) to dissolve or change a local board which is a local board of the municipality and one or more other municipalities,

(a) the by-law does not come into force until at least half of the municipalities, excluding the municipality that passed the by-law, have passed a resolution giving their approval to the by-law; and

(b) when the by-law comes into force, the by-law is deemed to be a by-law passed by each of the municipalities of which the board is a local board. 2006, c. 32, Sched. A, s. 90.

Regulations

(7) For the purposes of this section, the Minister may, despite any Act, make regulations,

(a) providing that any body performing any public function is a local board;

(b) providing that a local board is a local board of the municipality specified in the regulation;

(c) providing that a municipality does not have the power to dissolve or make a prescribed change to a local board specified in the regulation;

(d) imposing conditions and limitations on the powers of a municipality under this section;

(e) providing that, for the purposes specified in the regulation, a municipality is deemed to be a local board of the type dissolved or changed under this section;

(f) providing that, for the purposes specified in the regulation, a municipality shall stand in the place of a local board dissolved or changed under this section;

(g) providing for matters that, in the opinion of the Minister, are necessary or desirable to allow the council of a municipality to act as a local board, to exercise the powers of a local board or to stand in the place of a local board for any purpose;

(h) providing that the provisions of any Act specified in the regulation do not apply to the council of a municipality acting as a local board, exercising the powers of a local board or standing in the place of a local board for any purpose;

(i) providing for the continuation, cessation or amendment of any or all by-laws and resolutions of a local board which is dissolved or changed under this section;

(j) providing that a municipality or local board pay money to each other or to another municipality or local board;

(k) providing for transitional matters related to a dissolution of or change to a local board under this section. 2006, c. 32, Sched. A, s. 90.

· Section 223.1 to 223.24 (Definition of “local board”)

“local board” means a local board other than,

(a) a society as defined in subsection 3 (1) of the Child and Family Services Act,

(b) a board of health as defined in subsection 1 (1) of the Health Protection and Promotion Act,

Note: On a day to be named by proclamation of the Lieutenant Governor, clause (c) is amended by the Statutes of Ontario, 2007, chapter 8, subsection 218 (5) by striking out “Homes for the Aged and Rest Homes Act” and substituting “Long-Term Care Homes Act, 2007”. See: 2007, c. 8, ss. 218 (5), 232 (2).

(d) a police services board established under the Police Services Act,

(e) a board as defined in section 1 of the Public Libraries Act,

(f) a corporation established in accordance with section 203,

(g) such other local boards as may be prescribed; (“conseil local”)

· Section 238

“local board” does not include police services boards or public library boards; (“conseil local”)

Procedure by-laws respecting meetings

(2) Every municipality and local board shall pass a procedure by-law for governing the calling, place and proceedings of meetings. 2001, c. 25, s. 238 (2).

Notice

(2.1) The procedure by-law shall provide for public notice of meetings. 2006, c. 32, Sched. A, s. 102 (3).

· Section 239, 239.1 and 239.2

“local board” does not include police services boards or public library boards; (“conseil local”)

Meetings open to public

239. (1) Except as provided in this section, all meetings shall be open to the public. 2001, c. 25, s. 239 (1).

Exceptions

(2) A meeting or part of a meeting may be closed to the public if the subject matter being considered is,

(a) the security of the property of the municipality or local board;

(b) personal matters about an identifiable individual, including municipal or local board employees;

(d) labour relations or employee negotiations;

(e) litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board;

(f) advice that is subject to solicitor-client privilege, including communications necessary for that purpose;

(g) a matter in respect of which a council, board, committee or other body may hold a closed meeting under another Act. 2001, c. 25, s. 239 (2).

Other criteria

(3) A meeting shall be closed to the public if the subject matter relates to the consideration of a request under the Municipal Freedom of Information and Protection of Privacy Act if the council, board, commission or other body is the head of an institution for the purposes of that Act. 2001, c. 25, s. 239 (3).

Educational or training sessions

(3.1) A meeting of a council or local board or of a committee of either of them may be closed to the public if the following conditions are both satisfied:

1. The meeting is held for the purpose of educating or training the members.

2. At the meeting, no member discusses or otherwise deals with any matter in a way that materially advances the business or decision-making of the council, local board or committee. 2006, c. 32, Sched. A, s. 103 (1).

Resolution

(4) Before holding a meeting or part of a meeting that is to be closed to the public, a municipality or local board or committee of either of them shall state by resolution,

(a) the fact of the holding of the closed meeting and the general nature of the matter to be considered at the closed meeting; or

(b) in the case of a meeting under subsection (3.1), the fact of the holding of the closed meeting, the general nature of its subject-matter and that it is to be closed under that subsection. 2001, c. 25, s. 239 (4); 2006, c. 32, Sched. A, s. 103 (2).

Open meeting

(5) Subject to subsection (6), a meeting shall not be closed to the public during the taking of a vote. 2001, c. 25, s. 239 (5).

Exception

(6) Despite section 244, a meeting may be closed to the public during a vote if,

(a) subsection (2) or (3) permits or requires the meeting to be closed to the public; and

(b) the vote is for a procedural matter or for giving directions or instructions to officers, employees or agents of the municipality, local board or committee of either of them or persons retained by or under a contract with the municipality or local board. 2001, c. 25, s. 239 (6).

Record of meeting

(7) A municipality or local board or a committee of either of them shall record without note or comment all resolutions, decisions and other proceedings at a meeting of the body, whether it is closed to the public or not. 2006, c. 32, Sched. A, s. 103 (3).

Same

(8) The record required by subsection (7) shall be made by,

(a) the clerk, in the case of a meeting of council; or

(b) the appropriate officer, in the case of a meeting of a local board or committee. 2006, c. 32, Sched. A, s. 103 (3).

Record may be disclosed

(9) Clause 6 (1) (b) of the Municipal Freedom of Information and Protection of Privacy Act does not apply to a record of a meeting closed under subsection (3.1). 2006, c. 32, Sched. A, s. 103 (3).

Note: On a day to be named by proclamation of the Lieutenant Governor, the Act is amended by the Statutes of Ontario, 2006, chapter 32, Schedule A, section 104 by adding the following sections:

Investigation

239.1 A person may request that an investigation of whether a municipality or local board has complied with section 239 or a procedure by-law under subsection 238 (2) in respect of a meeting or part of a meeting that was closed to the public be undertaken,

(a) by an investigator referred to in subsection 239.2 (1); or

(b) by the Ombudsman appointed under the Ombudsman Act, if the municipality has not appointed an investigator referred to in subsection 239.2 (1). 2006, c. 32, Sched. A, s. 104.

Investigator

239.2 (1) Without limiting sections 9, 10 and 11, those sections authorize the municipality to appoint an investigator who has the function to investigate in an independent manner, on a complaint made to him or her by any person, whether the municipality or a local board has complied with section 239 or a procedure by-law under subsection 238 (2) in respect of a meeting or part of a meeting that was closed to the public, and to report on the investigation. 2006, c. 32, Sched. A, s. 104.

· Section 269 and 270

269. (1) In section 270,

“local board” means,

(a) a local board as defined in section 1, excluding a police services board and a hospital board,

(b) an area services board, a local services board, a local roads board and any other board, commission or local authority exercising any power with respect to municipal affairs or purposes in unorganized territory, excluding a school board, a hospital board and a conservation authority,

(d) a local housing corporation described in section 23 of the Social Housing Reform Act, 2000, and

(e) any other prescribed body performing a public function. 2001, c. 25, s. 269 (1); 2006, c. 32, Sched. A, s. 112.

Regulations

(2) The Minister may make regulations prescribing bodies which fall within the definition of “local board” in subsection (1). 2001, c. 25, s. 269 (2).

Adoption of policies

270. (1) A municipality shall adopt and maintain policies with respect to the following matters:

1. Its sale and other disposition of land.

2. Its hiring of employees.

3. Its procurement of goods and services.

4. The circumstances in which the municipality shall provide notice to the public and, if notice is to be provided, the form, manner and times notice shall be given.

5. The manner in which the municipality will try to ensure that it is accountable to the public for its actions, and the manner in which the municipality will try to ensure that its actions are transparent to the public.

6. The delegation of its powers and duties. 2006, c. 32, Sched. A, s. 113.

Policies of local boards

(2) A local board shall adopt and maintain policies with respect to the following matters:

1. Its sale and other disposition of land.

2. Its hiring of employees.

3. Its procurement of goods and services. 2006, c. 32, Sched. A, s. 113.

See: 2006, c. 32, Sched. A, ss. 113, 192 (2).

· Section 280

Powers re: local boards

280. (1) A municipality may contract for insurance for, pay any part of the premiums for or pay for any part of the damages, risks or costs referred to in subsection 279 (1) for any local board of the municipality or for any of the members, former members, employees or former employees of a local board of a municipality. 2001, c. 25, s. 280 (1).

Local board powers

(2) A local board of a municipality has the same powers with respect to itself, its members, former members, employees and former employees to contract for insurance, pay premiums for the insurance, be or act as an insurer, exchange reciprocal contracts of indemnity and to pay damages and costs as are conferred upon a municipality by this Act. 2001, c. 25, s. 280 (2).

· Section 283 (3)

Remuneration and expenses

283. (1) A municipality may pay any part of the remuneration and expenses of the members of any local board of the municipality and of the officers and employees of the local board. 2001, c. 25, s. 283 (1).

Limitation

(2) Despite any Act, a municipality may only pay the expenses of the members of its council or of a local board of the municipality and of the officers and employees of the municipality or local board if the expenses are of those persons in their capacity as members, officers or employees and if,

(a) the expenses are actually incurred; or

(b) the expenses are, in lieu of the expenses actually incurred, a reasonable estimate, in the opinion of the council or local board, of the actual expenses that would be incurred. 2001, c. 25, s. 283 (2).

Local boards

(3) A local board of a municipality may pay remuneration to and the expenses incurred by its members, officers and employees to the extent that the municipality is able to do so under this Act. 2001, c. 25, s. 283 (3).

· Section 390 to 400

“local board” includes any prescribed body performing a public function and a school board but, for the purpose of passing by-laws imposing fees or charges under this Part, does not include a school board or hospital board; (“conseil local”)

APPENDIX B

List of “Local Boards” within the City of Ottawa

Ø City of Ottawa Superannuation Fund

Ø Cumberland Village Heritage Museum Board

Ø Nepean Museum Board

Ø Ottawa Municipal Campsite Authority

Ø Ottawa Police Services Board

Ø Ottawa Public Library Board

Ø Pineview Municipal Golf Club Board of Management

Ø CARP Airport Authority (formerly the West Carleton Airport Authority)

Ø Crime Prevention Ottawa

Ø Property Standards Committee

Ø Ottawa Community Housing Corporation

Ø Business Improvement Areas:

Ø Bank Street B.I.A.

Ø Barrhaven BIA

Ø Byward Market B.I.A.

Ø Carp Village B.I.A.

Ø Heart of Orleans B.I.A.

Ø Manotick B.I.A.

Ø Preston Street B.I.A.

Ø Downtown Rideau Improvement Area B.I.A.

Ø Somerset Chinatown B.I.A.

Ø Somerset Village B.I.A.

Ø Sparks Street Mall Authority / Sparks Street Mall B.I.A.

Ø Vanier B.I.A.

Ø Westboro B.I.A.

APPENDIX C

Local Board	Procedure By-law s. 238 (2)	Meetings Investigator s. 239.1	Policies s. 270	Auditor General s. 223.19 (3)	Records s. 253
BIAs (s. 204)	X	X	X	X	X
Ottawa Police Services Board	--	--	--	--	X
Ottawa Public Library Board	--	--	X	--	X
City of Ottawa Superannuation Fund	X	X	X	X	X
Cumberland Village Heritage Museum Board	X	X	X	X	X
Nepean Museum Board	X	X	X	X	X
Ottawa Municipal Campsite Authority	X	X	X	X	X
Pineview Municipal Golf Club Board of Management	X	X	X	X	X
Carp Airport Authority	X	X	X	X	X
Crime Prevention Ottawa	X	X	X	X	X
Property Standards Committee	X	X	X	X	X
Ottawa Community Housing Corporation	--	--	X	--	--

APPENDIX D

CASE LAW REGARDING “LOCAL BOARDS”

In the event that a local entity does not fall within the six specific bodies noted in Subsection 1 (1) of the Municipal Act, 2001, reference must be had to the more general language in that provision to determine whether or not the entity is a “local board” for the purposes of that Act. That section encompasses other possible “local boards” characterized as, “any other board, commission, committee, body or local authority established or exercising any power under any Act, with respect to the affairs or purposes” of the municipality.

A number of judicial decisions discuss the interpretation of what falls into the category of “local board”. While most of these cases were made under the Municipal Affairs Act, and not the revised Municipal Act, 2001, the legal analysis remains relevant to understanding the interpretation of the definition. Many of the decisions are related to a tax exemption available to a local board, and are related to whether a body or board fits within one of the more general terms in the latter part of the definition. Since a tax exemption is often involved, the definition has been strictly construed by judges.

As the decisions discussed below will demonstrate, in order to fall within the definition of a “local board”, the body or entity in question must satisfy two key criteria. First, it must have a distinctly municipal or local character. Second, it must survive the application of the ejusdem generis test. A constant amongst the relevant case law is that the ejusdem generis interpretation must be given to the definition of “local board”. In Black's Law Dictionary, the statutory construction principle ejusdem generis, Latin "of the same kind or class", is described as follows:

A canon of construction that when a general word or phrase follows a list of specific persons or things, the general word or phrase will be interpreted to include only persons or things of the same type as those listed. For example, in the phrase, horses, cattle, sheep, pigs, goats, or any other barnyard animal - despite its seeming breadth - would probably be held to include only four-legged hoofed mammals.

In Re St. Larence Power Co. and Minister of Revenue, the appellant claimed to be a body established or exercising power or authority under such general or special Act with respect to the affairs of the municipality, and accordingly, was entitled to exemption under the Act. The Court decided that the term “local board” did not encompass the appellant's corporation. In summary, it was a private corporation operating for profit and, in so doing, was carrying on its own affairs and not those of the “municipality”.

The Court held that the meaning of the word “body” in the definition of “local board” had to be considered within the context of the eight other bodies specifically listed in the definition. Such bodies are “those normally existing as municipally established for the governing and regulating of civic affairs with a view to providing certain services for the municipality”. Therefore, the appellant, as a private corporation carrying on a commercial operation for the benefit of its shareholders, did not fall within the catagory of a “local board”.

It should be noted that the definition in that case was from the Retail Sales Act, although the wording was almost identical to the definition in the Municipal Affairs Act as well as the revised Municipal Act, 2001. Since the definition set out a specific list of boards followed by more general terms, the statutory interpretation principle of ejusdem generis was applied to limit the inclusion of other bodies to the specific class indicated by the list of included boards.

In Re City of Hamilton and Hamilton Harbour Commissioners et al, the Court held that the definition of a “local board” in the Municipal Affairs Act is “confined to bodies having a distinctly municipal character deriving their authority at least in part from a general or special Act of the Provincial Legislature” and whose activities are governed by the Municipal Affairs Act. The Hamilton Harbour Commissioners were not a “commission” for the purposes of being a “local board”. The ejusdem generis principle was also applied to include only municipal bodies in the definition, rather than federal authorities such as the Harbour Commissioners.

A similar definition of a “local board” from the Municipal Conflict of Interest Act (“MCOI”) was at issue in Westfall v. Eddy. In that case, the judge employed the ejusdem generis rule of interpretation in interpreting the more general parts of the definition. In this decision, the organization did not fall within the category established in the definition.

In Mangano v. Moscoe, the definition of local board was also examined, as defined in the Municipal Conflict of Interest Act. The respondent was a member of the Council of the municipality of Toronto. The applicant alleged that the respondent contravened the MCOI concerning his participation at a meeting of the vending subcommittee of the Council’s transportation committee. The respondent claimed that the vending subcommittee did not qualify as a “local board”. Mr. Justice Farley concluded that in order to be considered a “local board”, an entity must be an autonomous decision-making entity. In this case, the vending subcommittee decisions were made by Council and it could note therefore, be accepted that Council merely “rubber-stamped” the decisions of the subcommittee. In arriving at his decision Farley J. applied the doctrine of ejusdem generis, where he states the following:

I think that the statutory construction of that provision [ejusdem generis] is appropriate when dealing with the nature of “committees” and “bodies” in the interpretation of local boards under the Act. The nature of the entities described in the s.1(g) definition of “local board” would appear to be rather autonomous decision-making or action-taking entities. The mention of the committee of management of a community recreation centre and the negotiation committee appointed under the Municipal Boundaries Negotiations Act, 1981, S.O. 1981, c.7 (in the exclusions) reinforces my view that a committee of the council (such as the [Transportation Committee]), or a subcommittee [such as the Vending Subcommittee] (…) is not a committee within the meaning of such entity in the [Municipal Conflict of Interest Act] definition of “local board”. [emphasis added]

In Nicholls v. Merrickville-Wolford (Village), the appellant claimed that the Merrickville Health Centre fell within the definition of a “local board” under the Municipal Affairs Act. The Court held that the definition was “intended to mean a body, commission or authority, in some sense a public authority, operating in the public interest and exercising some power with respect to any of the affairs or purposes of a municipality”. Due to the fact that the Health Centre did not operate under the authority of the municipality and did not operate with respect to the affairs or purposes of the municipality, it did not come within the definition of a “local board”.

In Re Transit Windsor and ATU Loc, 616, the definition of “local board” under the Municipal Affairs Act was, once again, interpreted. In this instance, the arbitrator concluded that the employer, a body that provided public transit services, was a “local board” within the meaning of the Act. The rationale behind the conclusion was that the statute broadly defined a “local body” to include “any other board, commission, committee, body or local authority established or exercising any power or authority under any special Act with respect to any of the affairs or purposes (...) of a municipality”. The decision further states:

Whereas the Corporation of the City of Windsor has exclusive authority and jurisdiction over public transportation, it has authorised the employer to operate and manage the system. Considering these powers were established by statute and the employer is a body corporate responsible for operating and managing public transportation for the municipality, it is my conclusion that the employer is a local body for the purposes of the Municipal Affairs Act.

Given that the municipality had exclusive authority and jurisdiction over the corporation, and the nature of the services being provided that are truly local in nature, this entity fell under the category of “local board”.

Finally, the case of Toronto and Region Conservation Authority v. Ontario (Minister of Finance), dealt with the definition of a “local board” with respect to the Retail Sales Tax Act. The Court held that “the hallmark of a local board is its relationship to a municipality. It must exercise power or authority regarding the affairs or purposes of a municipality. It must be connected to, or be controlled by, a municipality or municipalities”. The Conservation Authority was created by the provincial government and required the approval of the Ministry of Natural Resources, not a municipality, for proceeding with projects. Further, no municipality controlled the Conservation Authority. The ejusdem generis rule was also used to point out that the eight enumerated bodies in the definition were “truly local in nature” and were “designed to deal with clearly local or municipal concerns”. The Conservation Authority was designed to deal with more far-reaching matters of provincial significance, and was consequently not found to be a “local board”.

In summary, based on the review of the relevant case law, the following criteria may be applied in order to determine whether an entity could be qualified as a “local board”: