Changes to the authority for local governments to hold electronic board and council meetings are afoot. After the current authority under the COVID Related Measures Act/Ministerial Order M192 to hold electronic meetings expires on September 28, fully electronic regular council, board, and committee meetings will only be possible if council or the board has enacted certain amendments to its procedure bylaw. According to the Province’s “Guidance for Adapting to the New Electronic Meetings Framework”, similar changes are planned for the Regional District Electronic Meetings Regulation. This document also states that these bylaw amendments cannot receive first reading until after the new electronic meeting provisions of the Community Charter come into effect on September 29. This means that there will be a gap in the authority to hold fully electronic committee and regular meetings that will last from September 29 until a local government is able to enact the required procedure bylaw amendments.
Electronic Meetings and the COVID Related Measures Act
Since June 2020, local governments have had the authority to conduct all meetings and public hearings electronically, first by virtue of ministerial orders, including Ministerial Order M192, and subsequently under the COVID Related Measures Act. No changes to procedure bylaws were required in order to hold fully electronic meetings. However, the authority to hold electronic meetings under the COVID Related Measures Act is set to expire on September 28, 2021.
Electronic regular council/board and committee meetings will be permitted after September 28, but under a different statute, and only in accordance with certain preconditions. These are specified in the recently passed Bill 10, Municipal Affairs Statutory Amendments Act (“Bill 10”). The Province’s guidance document states that the provisions of Bill 10 governing electronic council meetings will come into force by regulation on September 29.
Note that for special meetings, councils and boards are already able to hold electronic meetings under the Community Charter and Regional District Electronic Meetings Regulation, provided their procedure bylaws allow for it and certain preconditions are met. This will not change once the meeting provisions of Bill 10 come into force.
Turning back to electronic regular meetings and committee meetings, unlike the previous authority to hold these meetings , under Bill 10, they will be permitted only if they are authorized by a procedure bylaw. Further, that procedure bylaw must contain provisions for advance public notice of:
(A) the way in which the meeting is to be conducted by means of electronic or other communication facilities; and
(B) the place where the public may attend to hear, or watch and hear, the proceedings that are open to the public
The procedure bylaw must also specify procedures for giving this public notice.
The Province has created a guidance document to assist with this transition – the aforementioned “Guidance for Adapting to the New Electronic Meetings Framework” It states in no uncertain terms that “local governments must not amend their procedure bylaws until the provincial amendments are brought into force on September 29, 2021.” This is presumably because until September 29 local governments do not have any authority to enact these amendments. In order that there be no issue with the validity of any bylaw amendment, all readings of the new provisions must occur after that authority is in place.
This results in local governments ceasing to have the authority to conduct fully electronic committee and regular council meetings until they have amended their procedure bylaws. The critical takeaway is that the meetings at which the procedure bylaw is to be amended to allow electronic meetings cannot be held as fully electronic meetings. Bill 10 contains a provision that allows electronic participation in meetings by Council members that is the same in all material respects to the current section 128 of the Community Charter. Prior to the pandemic many municipalities’ procedure bylaws authorized some elected officials to participate in a meeting electronically. Electronic participation by members is allowed if authorized by a procedure bylaw, and among other requirements, there are facilities allowing the meeting’s participants and members of the public to hear, or watch and hear, the participation of the member. However, a fully electronic meeting is not permitted under this section and will not be until the required amendments to the procedure bylaw have been enacted.
Local governments should be aware of these changes and their affect on the conduct of meetings after September 29. If a local government is to continue with fully electronic meetings, advanced planning is required to minimize the disruption that these legislative amendments will cause.