Improper In Camera Meeting May Jeopardize Bylaw

A recent decision of the Supreme Court of Canada has raised a disturbing threat to the validity of bylaws adopted after consideration of the bylaws, or aspects of the bylaws, at an in camera meeting.

In RSJ Holdings v. London (City), (2007) 36 MPLR 1, an interim control bylaw adopted by the Council of the City of London, Ontario was declared null and void on the basis that the bylaw had been the subject of two meetings held in camera.

At the early stages in the process a planning report and proposed bylaw had been considered at an in camera session. At the in camera portion of the meeting, the City’s Planning Committee considered a draft interim control bylaw to freeze all development in the area. At a second meeting a week later, the Committee of the Whole considered a planning report and a solicitor’s report and made two recommendations. First, it suggested that a land use study be undertaken and secondly, that Council approve the interim control bylaw. When the Committee of the Whole meeting was terminated, City Council resumed its regular open session and in a matter of eight minutes, without debate or discussion, introduced, read and passed a total of thirty-two bylaws.

In Ontario, municipalities have special powers to enact interim control bylaws that place a one-year freeze or moratorium on land development, to give the municipalities time to consider a broader planning strategy for the land or area subject to the bylaw. Interim control bylaws in Ontario are a powerful planning tool that can be used to move swiftly to protect areas without advance notice or public hearings. To that extent they are distinct from typical land use control bylaws, both in British Columbia and Ontario.
Section 239(1) of the Municipal Act (Ontario) states:

Meetings open to public
	239.	(1)	Except as provided in this section, all meetings shall be open to the public
	Exceptions
		(2)	A meeting or part of a meeting may be closed to the public if the subject matter being considered is,
			(a)	the security of the property of the municipality or local board;
			(b)	personal matters about an identifiable individual, including municipal or local board employees;
			(c)	a proposed or pending acquisition or disposition of land by the municipality or local board;
			(d)	labour relations or employee negotiations;
			(e)	litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board;
			(f)	advice that is subject to solicitor-client privilege, including communications necessary for that purpose;
			(g)	a matter in respect of which a council, board, committee or other body may hold a closed meeting under another Act.

This is very similar wording to section 89 of the Community Charter (British Columbia).

The City had considered the interim control bylaw at an in camera meeting at which its solicitor was present, and argued that, as it was entitled to consider the matter in camera, the bylaw should not be invalidated. Apparently, the council believed the solicitor’s presence at the in camera meeting brought the meeting within section 239(2)(f).

The Supreme Court of Canada disagreed. It noted that in the past, in Ontario, as in British Columbia, a council meeting could be held in camera at the discretion of council. Now the legislation in both provinces contains specific rules for holding in camera meetings.

In its interpretation of the statutory provisions regarding in camera meetings the Court quoted at length from the 1984 Ontario Report of the Provincial/Municipal Working Committee on Open Meetings and Access to information, which led to the change in the approach to in camera meetings:

Some municipal councils employ lengthy, in camera special and committee meetings to discuss matters under debate and then ratify their decision in full council in a few minutes, with minimal discussion.

The Supreme Court of Canada agreed with the Ontario Court of Appeal that this is what the Council of the City of London had done in this case.

The Court held that the developer/landowner along with all residents of London had the right to a transparent and open process, and that the City had made a procedural error in considering the issue in camera. The Court does not go so far as to say that it would be improper to receive a solicitor’s opinion in camera, but in this case the in camera discussion seems to have ranged beyond the scope of the solicitor’s advice.

This decision serves as a reminder for local governments to be very cautious about the use of in camera meetings to hold discussions regarding matters that cannot properly be the subject of closed meetings.

Colin Stewart

This article was published in Winter 2007/2008 and may be superseded by changes in the law at a later date. It is for general information only. Specific legal advice should be obtained from a qualified lawyer.