Section 239 of the Municipal Act, 2011 (the "Act") requires municipal meetings to be open to the public unless an exception applies. In the November 2011 issue of our Municipal Law newsletter1 we considered the litigation exception, 1 of 7 exceptions recognized under the Act. In this article we will consider the solicitor-client privilege exception. Regardless of the exception used, the challenge for a municipality that closes a meeting to the public is to ensure that its reasoning and justification will ultimately withstand judicial scrutiny.
Prior to 1995, whether or not a meeting was open to the public depended not on the subject matter but rather on the type of meeting. As a result, regular council meetings were generally open to the public while committee meetings were closed. In response to the public's demand for accountability in municipal government, the Government of Ontario adopted open meeting requirements, subject to narrow exceptions.2 The adoption of the open meeting requirements would, it was reasoned, ensure the open and transparent exercise of municipal power thereby increasing the public's confidence in the integrity of local government.3
With the adoption of open meeting requirements, the issue was no longer whether the meeting was a regular or a committee meeting but rather whether the exception it intended to rely on (to close the meeting to the public) applied or not to the subject matter under consideration. This change signaled that the law applicable to municipal meetings would now be decided on substantive merits rather than on a procedural basis.
The solicitor-client privilege exception set out in section 239(2)(f) of the Act provides that, "a meeting or part of a meeting may be closed to the public if the subject matter being considered is advice that is subject to solicitor-client privilege, including communications necessary for that purpose."4 Solicitor-client privilege is meant to preserve confidential communications between a lawyer and client for the purposes of giving or receiving legal advice.5 Such is the importance of solicitor-client privilege that some legal commentators have described it as forming a "cornerstone" of our judicial system.6 The rationale underlying solicitor-client privilege has evolved to a modern acceptance of the importance of privilege in protecting the interests of the (lawyer's) client.
In a municipal context, the courts have found that communications between municipal council and its lawyer were privileged where council would "anticipate" that the legal advice so communicated by its solicitor would occur on a confidential basis thereby justifying reliance on the exception to close the meeting.7Municipalities are nonetheless cautioned that even where privilege is established over a report that such privilege will not automatically apply to the entire report.For instance, in one recent Ontario case, the judge found that solicitor-client privilege could not be claimed over the entirety of a report to council where only a portion dealt with legal advice from the City's solicitor.8 Practically speaking, this may mean that the privileged parts of the report could be redacted, leaving the balance (of the report) open to disclosure to the other party. Unsurprisingly, given that the courts assess the substance of a communication before deciding whether it is protected by solicitor-client privilege that stamping a report "high risk" or "confidential" will not in themselves be sufficient for the communications (made in the report) to attract solicitor-client privilege.9
Finally, municipalities must also bear in mind that even where a decision to close a meeting withstands judicial scrutiny (of the decision to close the meeting to the public), that the Act nonetheless requires that a statement be made as to the general nature of the matter under consideration at the closed meeting.10 In Farber, the Court of Appeal was of the view 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."11 As such, the Court of Appeal found in Farber that a description limited to "legal matters" was insufficient in maximizing the information available to the public.12
1In Camera Meetings: Should Municipal Councils be 'In Camera Shy'? The article considered the litigation exception contained in Section 239(2)(e) of the Act.
2RSJ Holdings Inc. v. London (City) 2007 CarswellOnt 3919 at paragraphs 18 and 19.
3Ibid at paragraph 19.
4Section 239(2)(f) of the Act.
5Kalen v. Brantford (City), 2011 CarswellOnt 2036 at paragraph 20.
6Bryant, Alan W, Lederman, Sidney N, Fuerst, Michelle K "The Law of Evidence in Canada", Third Edition, 2009 at page 926.
7Farber v. Kingston (City), 2007 CarswellOnt 1473 at paragraph 17.
8Kalen v. Brantford (City), 2011 CarswellOnt 2036 at paragraph 20.
9Kalen at paragraph 17.
10Section 239(4) of the Act.
11Ibid at paragraph 21.
12Farber at paragraph 19.