Conseil
Submitted by/Soumis par: Douglas Wallace,
Meetings Investigator
Contact Person/Personne
ressource : Douglas Wallace, Meetings Investigator/
Enquêteur pour les réunions
(613) 789-2166, doug.wallace@rogers.com
SUBJECT:
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REPORT
TO THE COUNCIL OF THE CITY OF OTTAWA REGARDING THE IN CAMERA MEETING OF THE TRANSIT COMMITTEE OF APRIL 21, 2010 AND
THE COUNCIL MEETING OF MAY 26, 2010: GENERAL ACCOUNTS-WRITE-OFFS
2009 |
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OBJET :
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RAPPORT AU CONSEIL MUNICIPAL D’OTTAWA SUR LA RÉUNION À HUIS CLOS DU 21 AVRIL 2010 DU
COMITÉ DU TRANSPORT ET LA RÉUNION DU 26 MAY, 2010 DU CONSEIL : COMPTES
GENERFAUX-RADIATIONS POUR 2009 |
Que le
Conseil prenne connaissance du rapport ci-joint et renvoie les recommandations
qu’il contient à l’Examen sur la gouvernance de 2010 – 2014.
On
November 28, 2007, City Council approved the establishment of a Meetings
Investigator position to investigate complaints regarding the propriety of
closed meetings held by City Council, a local board, or a committee of
either. The Meetings Investigator, Mr.
Douglas Wallace, was retained by the City on January 14, 2008. As part of his mandate, Mr. Wallace
acknowledges receipt of requests for an investigation, conducts the
investigation and reports his findings and any recommendations to an open
meeting of Council.
In
accordance with his mandate, and upon receipt of a request for investigation,
the Meetings Investigator conducted an investigation of the closed meetings of
the Transit Committee held on April 21, 2010 and City Council held on May 26,
2010.
As
part of the Mid-term Governance Review, at its meeting of June 24, 2009, City
Council approved that “future reports to
Council from the Meetings Investigator include a staff comment.” Accordingly, a staff response to the Meetings
Investigator’s report is attached at Document 2.
As
part of his investigation, the Meetings Investigator met with the Deputy City Treasurer,
Revenue, the City Clerk and Solicitor, the
Deputy City Clerk and staff of the City Clerk and City Solicitor’s branch
including the
Manager, Elections and MFIPPA and the Research Officer, Legislative Services.
LEGAL/RISK
MANAGEMENT IMPLICATIONS
There
are no legal/risk management implications associated with this report.
There are no financial implications associated with this report.
Document 1: Meetings
Investigator’s Report to the Council of the City of
Rapport
de la ville d’Ottawa au conseil municipal concernant la réunion à huis clos du comité du transport en
commun du 21 avril 2010 et la réunion du conseil du 26 mai 2010 : comptes
généraux – radiations pour 2009.
Document 2: Staff Response to Meetings Investigator’s Report to the Council of the City of Ottawa regarding the in camera meeting of the transit committee of April 21, 2010 and the Council meeting of May 26, 2010: General Accounts-write-offs 2009.
Réponse du personnel
au Rapport au Conseil municipal d’Ottawa
concernant la réunion à huis clos du Comité du transport en commun du
21 avril 2010 et la réunion du Conseil du
26 mai 2010 : Comptes généraux – radiations pour 2009 de l’enquêteur chargé d'examiner les réunions
municipales
DISPOSITION
Upon
Council approval, the City Clerk & Solicitor Department will incorporate
the enhancements to closed meeting procedures into the 2010-2014 Governance Report.
Document
1
REPORT TO THE COUNCIL OF THE CITY
OF OTTAWA REGARDING THE IN CAMERA MEETING OF THE TRANSIT
COMMITTEE OF APRIL 21, 2010 AND THE COUNCIL MEETING OF MAY
26, 2010: GENERAL ACCOUNTS WRITE-OFFS 2009.
THE
REQUEST
The
Meetings Investigator received a request to investigate the propriety of a
closed meeting of the Transit Committee held on April 21, 2010. The reasons for the request were stated as
follows:
“I
don’t understand why the ‘General Accounts and Write-Offs 2009’ discussions
occurred in camera. There is no supporting documentation for
these items and it’s not clear why they needed to be discussed in secret. The “Settlement to resolve litigation matter
including matters before administrative tribunal affecting the city” is also
extremely vague. I would argue that the
sentence says nothing at all. What settlement? What Tribunal? What litigations? What matters?”
The
Request raises the following issues:
1.
Does
the Notice of the Meeting and/or the Motion passed at the open session of the
Committee prior to going in camera
adequately set out the subject matter to be discussed and the reasons for going
in camera?
2.
Was
there supporting documentation before the Committee?
3.
Does
the subject matter of the Report fall within the exceptions to the general rule
that matters must be dealt with in open session?
THE
INVESTIGATION
The
following documents were reviewed to determine whether there had been
compliance with the provisions of the Municipal
Act and Procedure By-law:
(1)
Transit
Committee Agenda for April 21, 2010
(2)
Transit
Committee Report 38B (In Camera)
(3)
Motions
at Committee to go in camera and to
resume in open session
(4)
Confidential
Minutes 4 of the Transit Committee, Monday, April 21, 2010.
(5)
Minutes
of open Transit Committee Meeting of April 21, 2010.
(6)
Council
Agenda, May 26, 2010
(7)
Minutes
of the open Meeting of Council, May 26, 2010
(8)
Delegation
By-law 2009-231
(9)
Procedure
By-law
(10)
Handbook/Helpfile
and Committee Checklists for the receipt of reports and the preparation of
agendas
(11)
Letter
dated September 22, 2009 from the City Clerk and Solicitor to Information and
Privacy Commissioner relating to Complaint No. M109-6
Interviews
were also held with the Deputy City Treasurer, Revenue, the City Clerk and
Solicitor,
the Deputy City Clerk and staff
of the City Clerk and City Solicitor Department including the Manager, Elections and MFIPPA,
and the Research Officer, Legislative Services.
FACTUAL
BACKGROUND
The
subject of the report before the Committee can be described as “Amounts the
City Treasurer wrote off as uncollectible under the Delegation of Authority
By-law.” These amounts fell within two
categories: (1) the amount owing from a
company (Infoplace Ticket Centre Ltd. or “ITCL”) that went bankrupt and (2) smaller
amounts owing from some forty-nine (49) other companies and individuals. The information with respect to the
bankruptcy of ITCL was reported to the Committee and Council pursuant to an
earlier specific request by the Committee.
The information with respect to the write-off of all other accounts was reported
to Committee pursuant to section 21 of the Delegation of Authority By-law. The
by-law does not require this type of report to be forwarded on to Council but
this seems to have become the normal practice.
The
report itself is now a public document having been approved for release “30
Days After Final Settlement is Reached” when it was received by Council on May
26. It sets out the amount which was
owed to the City when ITCL went into bankruptcy and explains that negotiations
between counsel representing all major creditors and the Trustee in Bankruptcy
led to an order of the Superior Court of Justice setting out the division of
all available funds between creditors. It
also notes that some forty-nine (49) other accounts totalling $53,000.00 were listed
in a document on file with the City Treasurer. These accounts were also deemed
uncollectible and written off.
The
Minutes of the In Camera meeting of
the Committee confirm that the only discussion that took place in camera consisted of requests for
details concerning the amounts set out in the report, the potential for further
recovery and steps which might be taken to prevent a reoccurrence.
The
Minutes of the open session of the Committee meeting indicate that the in camera meeting lasted ten minutes. Questions were asked of the City Treasurer,
the Deputy City Treasurer Revenue, the General Manager of Transit Services, the
Deputy City Solicitor, and legal counsel from the City Clerk and Solicitor Department.
FINDINGS
1. Alleged
deficiencies in the description of the matter to be dealt with at the Committee
and the reasons for going in camera.
Both the Committee agenda and the report describe the matter to be dealt
with in camera as:
“General Accounts-Write-Offs 2009 Settlement to
resolve Litigation Matter including matters before Administrative Tribunal
Affecting the City.”
This wording was slightly expanded by the addition of “solicitor-client
privilege” when the
motion
was made by the Committee to go in camera. With
this addition, the motion read:
That the meeting of the
Transit Committee move In Camera pursuant to Section 13 (1) (e) and (f) of the Procedure By-law being
Litigation or potential litigation affecting the City and the receiving of
advice that is subject to solicitor-client privilege with respect to: General
Accounts-Write-Offs 2009.
Neither the Municipal Act nor the Procedure By-law prescribes the wording which
must be used in the report or the agenda to describe the subject matter being
dealt with. The wording of these two documents can accordingly not be found in
violation of any legislated provision. It
is noted in passing, however, that the wording that was used in both the report
and the agenda to describe the subject matter of the report indicated that
there had been a settlement to resolve one litigation matter. That matter was
not identified, nor was there any indication that the report also dealt with forty-nine
(49) other miscellaneous accounts that had been written off by the Deputy City
Treasurer An observer reading the
Agenda would certainly not know that a major part of the item being dealt with in camera was ITCL’s bankruptcy and that
there were forty-nine (49) more of less routine other accounts which would be
brought to the Committee’s attention. The wording of the reporting out date (“30
days after Final Settlement is Reached”) might also be
criticized as vague and uncertain in the absence of a settlement date in the
report.
The wording of the motion to go into closed session is, unlike the
wording of the subject matter in the report or on the Agenda, governed
by legislation. Subsection 13 (3) of the
Procedure By-law prescribes what must be stated in the motion in the following
terms:
A Motion to
close a meeting or part of a meeting to the public shall state:
(a) the
fact of the holding of the closed meeting; and
(b) the general nature
of the matter to be considered at the closed meeting by reference to the
specific issue to be considered at the closed meeting.
In
Farber v. Kingston (City), a
case decided under the wording in the Municipal
Act, the municipality resolved to move in
camera to discuss “legal matters” without being more specific. In Court, solicitors for the City argued that
the Municipal Act did not require
more specifics. The Court disagreed, indicating that:
In
the circumstances of this case, I do not think that the description “legal
matters” is sufficient. In my view, the clear legislative purpose informing s.
239 is to maximize the transparency of municipal governance so far as that as
possible in the circumstances.
Reading
subsections (2) and (4)(b) together in the context of the desirability of open
municipal government, I think that the resolution to go into closed session
should 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… At the very least, “legal matters” is
inadequate to state the general nature of the matter to be considered at the
closed meetings.
The
City has now made reference to the specific issue to be considered an express
requirement of its Procedure By-law by the addition of the underlined words in
subsection 13(3).
When
one considers the relative importance of the forty-nine (49) write-offs versus
the relatively insignificant loss suffered as a result of the bankruptcy of
ITCL, it would seem only appropriate that reference would be made in the motion
to both the bankruptcy and the other forty-nine (49) accounts written-off. This could have been done by a wording such
as the following:
“Amounts
written off as a result of the bankruptcy of
Infoplace Ticket Centre Ltd.,
and 49 lesser accounts. In Camera pursuant to section 13 (1) (e)
and (f) of the Procedure By-law as being
Litigation or potential litigation affecting the City and the receiving of
advice that is subject to solicitor-client privilege with respect to: General
Accounts-Write-Offs 2009”
2. The supporting
documentation before the Committee
Subsection
84 (3) of The Procedure By-Law provides that:
Except
as otherwise decided by a two-thirds vote of the members of Committee present
and voting, the Committee shall not consider any report, information previously
distributed, memorandum, or any matter that has not been distributed to the
members with the Agenda.
The
report indicates that “Specific details relating to general accounts receivable
deemed uncollectible in 2009 are on file with the Deputy City Treasurer,
Revenue.”
These details, consisting of a list of the names, addresses and
amounts of each of the forty-nine (49) accounts written off were not
distributed to members of the Committee either before or with the Agenda.
On
enquiring as to the reason for this departure from the procedure mandated by
the Procedure By-law the Meetings Investigator was advised that the procedure
was changed following a recent breach of the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA)
which occurred when a similar list was inadvertently made public. To avoid any reoccurrence of this mishap a
procedure was put in place whereby attachments to confidential reports were to
be printed on the standard pink coloured paper, marked “confidential” and filed
with the City Clerk and Solicitor in a discrete directory.
Neither
the procedure mandated by the Procedure By-law nor the procedure developed to
redress accidental breaches of confidentiality were followed in this case. Although
there is no indication that transparency would have been improved if either
procedure had been followed, it is recommended that consideration be given to
amending either the procedure or the Procedure By-law so as to avoid future
conflicts between the two. It is also
recommended that when the question of the handling of confidential supporting
documents is reviewed, consideration be given to the means of indicating that
some supporting documents may require longer periods of confidentiality than
the report they support.
3. The Subject matter of the Report
Section 239 of the Municipal Act sets out the subjects
which may be considered in camera.
Section 239 reads in part as follows:
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;
(c) a proposed or pending acquisition or disposition of land by
the municipality or local board;
(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)
As noted
above, the Committee relied on the exemption in clauses (e) and (f) of the Act
as its authority for resolving in camera
for a consideration of this matter.
The
law gives documents arising during litigation or the giving of solicitor-client
advice a special status which protects them from disclosure in the litigation
process. This status has been discussed and
confirmed in a number of recent court cases as well as reports by Meeting
Investigators carrying out their duties under S.239.2 of the Municipal Act. [1]
Although
the litigation and solicitor-client privileges have certain features in common,
they are not the same. They have
different purposes and should not be confused.
The litigation privilege is somewhat more restrictive of the two. Its aim is to protect the litigation process
by ensuring that parties are free to prepare, gather and discuss all matters
relating to an issue that will be placed before a court without fear that their
efforts in preparation for the litigation will be brought before the court and
influence the outcome. For the privilege
to arise the dominant purpose for preparing the document must be some pending
or realistically contemplated litigation.[2]
The
facts of this case are that all legal issues between ITCL and the City or ITCL’s
creditors and the City were resolved by an Order of a judge of the Superior
Court of Justice on September 3, 2009 and confirmed by Order dated April 6,
2010. Accordingly, at the time of the Transit Committee meeting no litigation
existed or was anticipated, and no litigation privilege could arise to justify
the discussion of this matter in
camera.
The
situation is otherwise when it comes to the privilege of solicitor-client
communications. This privilege covers
all communications between a client and his, hers or its legal advisor in the
course of providing legal advice on any subject whether or not litigation
exists or is even contemplated. All that is required is that the communication
(1) be between a client and his solicitor acting in a professional capacity,
(2) be made in relation to the seeking or receiving of legal advice, and (3) be
intended to be confidential. [3]
.
A
review of the Minutes of the In Camera meeting
satisfies me that the seeking and giving of legal advice by the City’s legal
advisors was not only contemplated but actually took place at this meeting. I am also satisfied that the City anticipated
that this advice would be given in confidence and that the City did not consent
to the waiver of its right to expect confidentiality of its communication prior
to the date set for the release of the report. For these reasons I find that the subject
matter considered properly fell within the exception to the open meeting
requirements found in paragraph 239 (2) (f) of the Municipal Act.
CONCLUSION
In summary I find that this
matter falls within the list of subjects that may, in Council’s discretion, be
discussed in closed session and that the procedure followed complied with the
requirements of the Municipal Act and
Procedure By-law with the following exceptions:
I also find that it would be
helpful if the reporting out date for any in
camera report were to be set out in a manner that would allow one reading
the report to know with certainty whether the time had arrived for the report
to be released to the public.
REPORT TO BE MADE PUBLIC
This
report is provided to Council pursuant to the provisions of subsection 239.2
(10) and is, by subsection 239.2 (11) required to be made available to the
public.
Douglas R. Wallace
Meeting Investigator
July 2, 2010
Document
2
Staff Response to
the Meetings Investigator’s “Report to the Council of the
City of Ottawa Regarding the In Camera
Meeting of the Transit Committee of April 21, 2010 and the Council Meeting of
May 26, 2010: General Accounts Write-Offs 2009”
Background
As
previously noted, all reports from the Meetings Investigator are now
accompanied by a staff response.
In
his Report
to the Council of the City of Ottawa Regarding the In Camera Meeting of the
Transit Committee of April 21, 2010 and the Council Meeting of May 26, 2010: General
Accounts Write-Offs 2009, the Meetings Investigator reports on a
complaint received related to Transit Committee Report 38-B, In Camera Item 1, “General Accounts –
Write-Offs 2009 – In Camera –
Settlement to Resolve Litigation Matter Including Matters Before Administrative
Tribunal Affecting the City – Reporting Out Date: 30 Days After Final
Settlement Is Reached”. The Transit
Committee moved in camera pursuant to
Section 13(1) (e) and (f) of the Procedure
By-law being litigation or potential litigation affecting the City and the
receiving of advice that is subject to solicitor-client privilege. City Council did not discuss this item at
Council, carrying it on consent.
Discussion
In
his report, the Meetings Investigator provides an analysis of the matter and
the use of the two exceptions cited in the motion to move in camera. Staff are in agreement with the observations of the Meetings
Investigator.
Upon
acknowledging his conclusion that “this matter falls within the list of
subjects that may, in Council’s discretion, be discussed in closed session and
that the procedure followed complied with the requirements of the Municipal Act and Procedure By-law,” the Meetings Investigator does offer three
recommendations that would enhance the transparency of the matter:
(1) The
description of the matter to be discussed in
camera might properly have been expanded to include a reference to the ITCL
[Infoplace Ticket Centre Ltd.] bankruptcy;
(2) The
procedure relating to supporting documents in the Procedure By-law should have been followed or the By-law amended to ensure that documents
referred to in a report are either in distributed to Members of Council or held
on file with the City Clerk and Solicitor; and
(3) That
the reporting out date for any in camera
report might be set out in a manner that would provide more certainty regarding
when the report would be available to the public.
1.
Description
of Matter to be Discussed In Camera
Council
has already established a standard practice of identifying the specific issue
to be considered as part of a motion to move in camera. In 2010, City
Council has moved in camera with
respect to litigation six times and in every instance has identified the
specific issue [i.e. Rogers and the Municipal Street Occupation Agreement, Guinan vs. City of Ottawa, Ottawa Baseball Stadium,
etc.). At the Standing Committee level,
Committees have moved in camera three
times with respect to litigation and one of the three instances resulted in the
procedural oversight identified by the Meetings Investigator. This report highlights the benefit of
additional training for Standing Committee coordinators and assistants with
respect to Council’s closed meeting procedures.
As
such, staff agrees with the Meetings Investigator’s
recommendation that the description of the matter to be discussed in camera could have been expanded to
include a reference to the ITCL bankruptcy.
As the Meetings Investigator indicates, the matter of the ITCL
bankruptcy was part of a list of approximately fifty general accounts
receivable deemed uncollectible in 2009.
However, the ITCL bankruptcy was specifically highlighted in the
confidential report and did account for the majority of the total amount
written off. While the City of Ottawa’s open meeting procedures go beyond the
requirements of the Municipal Act, 2001
by requiring the specific nature of in
camera discussions to be identified in a motion to move in camera, staff agrees that this is an
instance where the specific nature could have been more detailed in order to
provide more transparency.
2.
Procedure
Relating to Confidential Supporting Documents
Previously,
the confidential supporting documents for ‘General Accounts – Write Offs’
reports were circulated to Members of Council, on pink paper, and held on file with
the City Clerk and Solicitor. In August
2009, a privacy breach occurred whereby the confidential attachment to a ‘General
Accounts – Write Offs’ report was inadvertently posted as part of the public
agenda to Ottawa.ca (linked to the staff report). The confidential attachment included the
names of 19 companies and 376 individuals and the amounts written off. As a result of the breach, the process was
amended to ensure the privacy of personal information included in the
confidential attachment. The
amended procedure removed the circulation of the confidential list to Members
of Council and senior staff and the confidential list remained on file with the
Deputy City Treasurer, Revenue (as noted in the confidential report).
As
the Procedure By-law and the Delegation of Authority By-law are not
revised on a one-off basis, neither has been amended to reflect the amended
procedure. Staff
agrees with the Meeting Investigator’s recommendation and the Procedure By-law and Delegation of Authority By-law will be
updated accordingly, as part of the Governance Review, regarding the procedure
relating to the confidential supporting documents of these reports.
Further,
with respect to confidential reports and supporting documents, Council has been
moving towards conducting more business in open session with fewer
exceptions. More reports are coming
forward as public reports with only the confidential aspects provided
separately (i.e. legal opinions coinciding with a report are provided
separately in a confidential memo). In
order to further reduce the number of confidential reports rising to Committee
and Council, staff are investigating the regulations
of the Municipal Freedom of Information
and Protection of Privacy Act (MFIPPA) to bring forward reports such as commemorative
naming reports or appointments to committees and boards as public reports. These reports are currently brought forward
as confidential reports as they deal with identifiable individuals.
3.
Reporting Out Dates
The
City of Ottawa includes reporting out dates on all confidential reports. This process is above and beyond the open
meeting requirements of the Municipal
Act, 2001. Often, the reporting out
date is immediately following Council or Committee approval. However, there are certain matters that must
be delayed (i.e. reports regarding court proceedings where a decision has yet
to be rendered). In these cases, it is
often difficult to determine what the specific day the report can be reported
out shall be. Staff
agrees that more specificity regarding the reporting out date would enhance
transparency and will endeavour to provide a more precise reporting out date
where possible.
Furthermore,
the Procedure By-law currently states
that once the reporting out date has been reached, the report is then available
for release to the public upon request. Staff are
recommending that the process be enhanced to proactively link the confidential
report to the appropriate Council or Committee agenda once the reporting out
date has passed.
Conclusion
In summary, staff are
in agreement with the recommendations offered by the Meetings
Investigator. While the City of Ottawa
is a leader in open meetings, there are still areas that can be enhanced.
In addition to the recommendations of
the Meetings Investigator, City Council continues to demonstrate its leadership
with respect to conducting business in open session. At both Committee and Council, for matters
which staff have recommended going in
camera, Members of Council have requested the rationale for dealing with
the matter in closed session (similar to the rationale now required for waiver
of the rules). Further, in some
instances, staff have been asked to provide the same
presentation in open session as was provided in closed session.
For instance, at the 27 April 2010
meeting of the Planning and Environment Committee, the City Clerk and Solicitor
provided a briefing on an appeal by Orgaworld Canada
to the Environmental Review Panel. Upon
request of the Chair, the City Clerk and Solicitor advised that his briefing
would be in closed session as he would provide an overview of the litigation
and the strategy proposed by the appellants.
The City Clerk and Solicitor advised that he could make the same
presentation in open session if deemed appropriate by the Committee. Upon resuming in open session and following
the Chair’s report of the closed session, the City Clerk and Solicitor provided
the same briefing with one minor exception.
This process is an additional
enhancement that staff recommend be incorporated into the changes made to the Procedure By-law as a result of this
report. Specifically, staff
recommend that in camera
presentations and briefings are of the need to move into closed session.
In light of the upcoming Governance
Report, staff recommend that the recommendations of the Meetings Investigator
and the additional enhancements proposed by staff be included in the governance
changes as part of the Report and that the Procedure
By-law and Delegation of Authority
By-law be updated accordingly.