Oshawa council’s meeting about utility merger was illegal, ombudsman rules
Dube says proposed utility merger should have been discussed in public, not in a closed-doors “education and training” session.

TheStar.com
July 25, 2016
San Grewal

Oshawa council acted illegally when it dealt in secret with a proposed multimillion-dollar merger of publicly owned hydro utilities, instead of sharing details with the public, Ontario’s ombudsman has ruled.

In a report released this week, the ombudsman found that council “contravened the Municipal Act” last December when it went behind closed doors to discuss a proposed merger between the Oshawa Power and Utilities Corporation (OPUC) and Veridian.

The original public notice from city clerk Sandra Kranc for the closed session stated it was held to “receive education and training from (OPUC) concerning the current local distribution company trends in Ontario.”

In his decision, after four separate complaints were filed, ombudsman Paul Dubé ruled that the actual purpose of the closed meeting was “to obtain information about a specific proposed merger.”

“During the closed session, councillors were provided with detailed information about OPUC’s proposed merger with Veridian and given the opportunity to ask questions about that information . . . the information presented and the questions asked materially advanced council’s business and decision-making,” the report says.

During the meeting, councillors asked how the merger would affect ratepayers, whether it “would leave OPUC in public ownership” and whether hydro rates would go up, the report states.

Based on audio recordings of the meeting, Dubé wrote, Oshawa Mayor John Henry advised council, prior to going behind closed doors, that the session was for “education and training” regarding utility “trends in Ontario.”

Henry was confronted at least three times with concerns from councillors who questioned whether the discussion should be kept from the public, but he ignored the concerns, according to Dubé’s report.

The ombudsman found that Councillor Amy McQuaid-England advised before going in camera that it was not the right thing to do and, along with another member, voted against keeping the discussion from the public. But seven members voted to keep the matter private.

Then, twice during the private session, councillors raised concerns, which were dismissed by Henry, about the legality of the meeting. At one point during the closed session, one of the concerned councillors got up and left, the report states.

“I took the action as chair of the meeting because I believed we were going in the right direction,” Henry told the Star on Wednesday. “I accept responsibility . . . The ombudsman says I’ve made mistakes.”

Henry called it “an incredible learning experience.”

“Do I believe that what I did that day was totally wrong? No,” the mayor said.

Resident Dave Conway was at the December council meeting at which he and others were asked to leave the room when council went in camera.

He now feels angry that citizens were not told about what was discussed at that meeting.

Since news of the proposed merger became public knowledge, prompting concerns among some Oshawa residents that it’s actually a sale of their public hydro utility, questions have been raised about what prior knowledge council had.

“An apology is in order to the citizens of Oshawa for that behaviour,” Conway said.

According to the ombudsman’s final report, Oshawa council, when presented with a draft of the findings, rejected the conclusions.

“Council submitted that its discussions were permissible under the ‘education and training’ exception,” the final report says, noting that councillors didn’t agree that the Municipal Act was violated because no “decision making” was advanced.

Dubé wrote that he was “not persuaded” by Oshawa council’s interpretation, which “would mean that a council is permitted to discuss any topic during an education and training session, so long as it returns to open session before voting on the related resolution.”

In May, when residents raised suspicions that the merger or sale had been discussed back in December, Henry said the purpose of that meeting was to get “an idea of what was going on in the province” regarding electrial distribution, according to the Oshawa Express. Asked Wednesday why he characterized the meeting that way, Henry told the Star: “I did say that to the press afterwards and I did ask questions, and, you know, I’m not going to go back and forth with you. I accept what the ombudsman has said and we’re dealing with it on our end.”

Henry said council has not yet made a decision on the proposed merger.

Councillor and former mayor Nancy Diamond, one of the councillors who ignored concerns raised prior to the closed meeting, told the Star she did so “because I had a different opinion.”

“We are a very open council and, following our procedural bylaw, only move into closed meetings when we consider it appropriate and legal to do so.”

Resident Rosemary McConkey, who ran against Henry for the mayor’s job in 2014, said many people in Oshawa have lost faith in council.

“They just don’t get it, obviously, they still don’t get it . . . It’s unfortunate that citizens have to go through these hoops to find out what’s going on.”