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While municipalities are legally required to ensure their meetings are open to the public, there is provision in the Municipal Act 2001 for certain forums to be private. However, municipalities must assess very carefully whether the limited exceptions to go 'in camera' apply. In order to strike a balance between transparency in local government and the need from time to time to conduct a closed meeting, municipalities should ensure that the exception they rely on will hold up under judicial scrutiny.

In the early 1990's, the Government of Ontario adopted 'open meeting' requirements for local government and amended the Municipal Act 2001 accordingly. With this amendment, the Province of Ontario signaled that it intended to take steps to increase the public's confidence in the integrity of local government by ensuring the open and transparent exercise of municipal power1. Despite the move towards increased transparency, there are still going to be situations—as one judge recently noted—where a closed meeting is necessary, such as to avoid the business of a municipal corporation being 'hindered', in the judge's words2.

Although the Municipal Act 2001 provides for seven separate subject matter exceptions to the requirement that meetings be open to the public, this article will focus on the 'litigation exception' under Section 239(2)(e).

Section 239(2)(e) of the Municipal Act 2001 provides that "a meeting or part of a meeting may be closed to the public if the subject matter being considered is litigation or potential litigation, including matters before administrative tribunals affecting the municipality or local board". A person reading this particular exception would be forgiven for assuming that the Province intended to grant municipalities a wide authority to close meetings to the public in situations where litigation is an issue. However, rather than take a permissive approach in its interpretation, Ontario's highest court adopted a restrictive reading of the closed meeting exceptions in its decision in RSJ Holdings and The Corporation of the City of London 2005 ("RSJ Holdings"), which was subsequently endorsed by the Supreme Court of Canada.

In RSJ Holdings, the City of London, Ontario, debated the adoption of an interim control by-law concerning lands owned by RSJ Holdings in a meeting that was closed to the public. Despite the basic principle contained in the Municipal Act 2001 that all meetings shall be open to the public, the City of London sought to justify its decision to close the meeting by using the 'litigation exception'. The City argued that because litigation would follow from its decision to adopt the interim control by-law over the land owned by RSJ Holdings, it was therefore authorized to close the meeting to the public.

In rejecting the City of London's reasoning, the Ontario Court of Appeal found that it had improperly relied on the litigation exception to close the meeting. The true subject matter of the meeting was the interim control by-law, not litigation. The Court of Appeal further reasoned that the fact that there might be litigation arising from the adoption of the interim control by-law did not make the "subject matter under consideration" potential litigation.

The decision in RSJ Holdings serves to remind municipalities that any plan to exclude the public from a meeting must be carefully considered3. It should only be done where the matter under discussion falls clearly within one of the seven exceptions in Section 239 of the Municipal Act 2001. The consequences of disregarding the Act may lead to serious penalties. In the case of RSJ Holdings it resulted in the quashing of the by-law as an appropriate remedy. Municipalities should heed this example and only conduct closed 'in camera' meetings when it is appropriate.

1 RSJ at paragraph 19.

2 Kalen v. Brantford (City) 2011 at paragraph 29.

3 Section 238 of the Municipal Act 2001 defines "meeting" as any regular, special or other meeting of a council, of a local board or of a committee of either of them.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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