Peterborough breached Municipal Act with closed session April meeting

Investigator found "no good or valid reason that the information discussed" in April 11 meeting couldn't have been public

MyKawartha.com
Sept. 7, 2016
By Jamie Steel

The City’s investigator found a closed session meeting of Peterborough’s committee of the whole in April breached the Municipal Act, and the subsequent report was deemed a “learning experience” by the City’s solicitor.

In a report presented to the committee Tuesday (Sept. 6) night, councillors learned the City’s clerk’s office received a complaint from a citizen stating the April 11, 2016 closed session meeting of committee of the whole did not meet the requirements of the Municipal Act and should not have been held in closed session.

The report was received with little discussion Tuesday, although Peterborough’s chief administrative officer did note the City will not be subject to any further action based upon this finding.

“Nothing really happens at all,” said Allan Seabrooke.

“Will be be putting some additional information together on closed sessions ... but really, there isn’t any watchlist so to speak, or any further actions taken by the municipality.”

According to the report from Patricia Lester, City solicitor, the complaint was forwarded to Local Authority Services (LAS), the City’s Closed Session Investigator.

“LAS delegated its power and duties to Amberley Gavel Ltd. to undertake the investigation and report to City Council.”

The meeting in question, according to Lester’s report, surrounded the matter of the Batten-White subdivision application.

“After having sent the Application back to the developer for certain modifications, a revised subdivision plan was before the Planning Committee of Council on March 21, 2016 for approval,” continues Lester.

While all 11 councillors sit on the planning committee, councillors Diane Therrien and Henry Clarke were absent from the March 21 meeting. Councillor Dave Haacke declared a conflict of interested and abstained from discussing or voting on the matter. The motion to approve the application lost on a tie vote.

“This resulted in council, as the approval authority, not having made a decision on the Application,” states Lester, noting due to the legislative timeline for approving or denying applications, the developer was automatically granted the right of appeal to the Ontario Municipal Board.

The prehearing for this matter goes before the Board on Oct. 19 in the council chambers at Peterborough City Hall.

Lester’s report says the minutes for the April 11 closed session meeting indicate the committee discussed why the matter was being dealt with in closed session. Committee members were told the matter may result in potential litigation, hence the meeting was closed to the public.

“They were also advised that the meeting could alternatively been closed under section 239(3.1), the education and training exception under the Act, as the topic under discussion at the meeting was not the Application itself but, rather, the procedural flaw in the City’s Procedure By-law which left the Application matter virtually undecided,” reads the report.

“The Clerk and the Deputy Clerk indicated that no discussion occurred on the merits or defects, if any, in the Application at the Closed Session Meeting.  It was entirely devoted to the flaw in the City’s Procedure By-law.”

Councillors Tuesday heard the investigators concluded litigation must actually be in process or realistically pending in order to invoke the “litigation privilege” and that the committee breached the provisions of the Municipal Act when they discussed the City’s procedural bylaw in closed session.

“Alternatively, the Investigators also concluded that if the City relied upon section 239(3.1) of the Act to close its meeting to the public, it would also have been in breach of the Act as staff was merely imparting information to Council on how the Procedure By-law operates and the effect of the tie vote on March 21,” reads Lester’s report.

“In the opinion of the Investigators, there would have been no good or valid reason that the information discussed in camera, could not have been shared with the public.”

In her report, Lester says the investigation revealed different interpretations of the exceptions in the Municipal Act.

“This difference makes it difficult to establish a best practice but staff will endeavour to ensure that only narrow issues that come within the exceptions are included in reports recommended to be dealt with inclosed sessions,” Lester writes.

“This experience is also a reminder that not all of a discussion needs to be closed or just that part of the discussion that would comply with the Act. In addition, there will be greater specificity in the reasons provided for going into closed sessions, in the agendas provided to the public.”