Hamilton, City of

The Ombudsman investigated a closed meeting of the City of Hamilton’s General Issues Committee held on February 6, 2019. While the Ombudsman found that the subject matter discussed fit within the exceptions under the Municipal Act, 2001, he found that the minutes did not capture the substance of the discussion. There was also no audio or video recording of closed session. 

When interviewed, those who were present could not provide details of the in camera discussion and their accounts were not always consistent with one another. As a best practice, the Ombudsman recommended that the Committee ensure that its minutes provide an accurate record of the in camera discussion, including by providing a description of the substantive and procedural matters discussed. In addition, the Ombudsman encouraged the Committee to adopt the best practice of making audio or video recordings of all proceedings, including closed meetings, to ensure an accurate record.

The Ombudsman received a complaint about a closed meeting of the City of Hamilton’s General Issues Committee held on February 6, 2019. The resolution to go into closed session referred to item 14.4 of the agenda, which was identified on the agenda as a “Roads Infrastructure Litigation and Review Assessment” with an associated staff report. Because the agenda provided some information about the nature of the subject matter to be considered, the Ombudsman found that the Committee did not breach the open meeting rules. However, going forward, he encouraged the Committee to ensure that not only the meeting agenda but also the resolution to proceed behind closed doors include a description of the topic(s) to be discussed.

The Ombudsman received a complaint about the General Issues Committee of the City of Hamilton’s in camera discussion of item 14.4 of the agenda, which was identified as a “Roads Infrastructure Litigation and Review Assessment” with an associated staff report. 

The resolution passed by the Committee to go into closed session cited the three agenda item numbers to be discussed and the closed meeting exceptions the Committee was relying on to exclude the public from its discussion of the three items. However, it did not specify which exceptions related to which agenda items. The Ombudsman encouraged the Committee to ensure that its resolutions to proceed in camera indicate which closed meeting exception(s) are being relied upon in relation to each matter to be discussed.

In addition, insofar as the resolution to go into closed session referred only to the agenda item number, the Ombudsman found that the Committee did not breach the open meeting rules because the agenda provided some information about the nature of the subject matter to be considered under item 14.4. However, going forward, he encouraged the Committee to ensure that both the meeting agenda and the resolution to proceed behind closed doors include a description of the topic(s) to be discussed.

The Ombudsman received a complaint alleging that the agenda for the February 6, 2019 meeting of the General Issues Committee of the City of Hamilton misrepresented the subject matter for discussion as one item, when there were four different PowerPoint presentations given in closed session. 

The Ombudsman concluded that the Committee did not contravene the open meeting requirements under the Municipal Act, 2001, as the Act does not require municipalities to provide advance notice of the matters to be discussed in closed session. However, as a best practice, the Ombudsman encouraged the Committee to provide accurate information in its agendas about the matters intended to be discussed at meetings, including in closed session.

The Ombudsman investigated a complaint about a closed meeting of the City of Hamilton’s General Issues Committee held on February 6, 2019. The discussion in closed session related to a consultant’s report from November 20, 2013 that found that there were low levels of friction on the Red Hill Valley Parkway. There was a confidential in camera PowerPoint presentation consisting of four parts. 

Legal counsel delivered one part of the presentation, while City staff delivered the other three parts. The Ombudsman found that all four parts of the PowerPoint presentation were necessary to provide context to the Committee in order for it to receive a report and associated legal advice from the City Solicitor.

The Ombudsman investigated a complaint about a closed meeting of the City of Hamilton’s General Issues Committee held on February 6, 2019. The discussion in closed session related to a consultant’s report from November 20, 2013 that found that there were low levels of friction on the Red Hill Valley Parkway. There was a confidential in camera PowerPoint presentation consisting of four parts.

During one part of the PowerPoint presentation, the Committee received information and advice from internal and external legal counsel about the consultant’s report and its impact on existing ongoing litigation involving the City. It also heard from counsel about, and discussed, related potential future litigation that was more than a mere possibility. Accordingly, the Ombudsman found that this discussion fit within the litigation or potential litigation exception.

The Ombudsman investigated a complaint about a closed meeting of the City of Hamilton’s General Issues Committee held on February 6, 2019. 

Throughout the closed meeting, the Committee discussed an individual staff member, who was identified by name, and the discussion involved scrutiny of their conduct. Accordingly, the Committee’s discussion fit within the exception for personal matters about an identifiable individual.

The City of Hamilton provided the Ombudsman with the recording of an electronic committee meeting of the Agriculture and Rural Affairs Sub-Committee. The municipality subsequently permanently deleted the recording while the Ombudsman’s review was ongoing. The Ombudsman clarified that municipalities have an obligation to preserve evidence that is the subject of a review or investigation by the Ombudsman’s Office.

The Ombudsman was unable to conclude whether an electronic meeting of the City of Hamilton’s Agriculture and Rural Affairs Sub-Committee was livestreamed to the public. 

The Ombudsman found that the Board of Trustees for the Hamilton Waterfront Trust contravened the open meeting rules on February 21, 2023 when it discussed a letter outlining the Ombudsman’s findings about previous closed meeting complaints in closed session. The Ombudsman found that the Hamilton Waterfront Trust contravened the open meeting rules when it discussed this letter in closed session. The discussion did not fit within the “ongoing investigations by an ombudsman or appointed investigator” closed meeting exception, as the Ombudsman’s investigation had been completed prior to the meeting.

The Ombudsman found that the Hamilton Waterfront Trust is a local board of the City, and is therefore subject to the open meeting rules of the Municipal Act, 2001. The Waterfront Trust was established by the City to manage and develop the waterfront lands on behalf of the City for the benefit of its citizens. The Waterfront Trust operates to fulfill its mandate in a way that is consistent with the City’s vision for the waterfront. The Ombudsman determined that this is a municipal affair and is integral to the day-to-day operation of the business of the City. 

The Ombudsman found that the Hamilton Waterfront Trust is a local board of the City, and is therefore subject to the open meeting rules of the Municipal Act, 2001. For the period of April 2020 to February 2021, members of the public were not permitted to attend the meetings of Waterfront Trust’s Board of Trustees held electronically. Beginning in April 2021, after this concern was raised with the City and the Board, the Board began to comply with the open meeting rules, including providing adequate public notice and ensuring that the public could observe meetings in progress.

The Ombudsman found that a working group in the City of Hamilton is not a committee, and is therefore not subject to the open meeting rules of the Municipal Act, 2001. The working group was not designated as a committee by municipal by-law, nor did it function as a committee because it did not have any delegated authority from council to make decisions. The working group’s primary role was administrative.

The Ombudsman reviewed a complaint that two meetings, one held by the Heritage Permit Review Sub-Committee and the Agriculture and the other by the Rural Affairs Advisory Committee for the City of Hamilton, were improperly closed to the public because of livestream issues. The Ombudsman found that one meeting experienced a technical glitch causing the livestream to go down for a brief period of time, and was unable to determine the quality or availability of the livestream for the other meeting.

The Ombudsman received a complaint about an electronic meeting held by the City of Hamilton’s Board of Health on August 11, 2021. The complaint alleged that during the meeting, the votes of individual Board members were not visible in real time. The Ombudsman found that there was no contravention of the open meeting rules in the Municipal Act, 2001 at this meeting. All meeting proceedings were streamed live online. The results of each vote were also announced verbally. A technical malfunction prevented the streaming software from displaying the breakdown of votes on-screen in real time.

The Ombudsman reviewed a complaint alleging the Board of Directors of the City of Hamilton Farmers’ Market failed to provide notice to the public of meetings on September 28, 2020 and March 23, 2021, contrary to the Municipal Act, 2001. Under its operating agreement with the City of Hamilton and procedure by-law, the Hamilton Farmers’ Market Board of Directors’ meetings are to be open to the public, except where otherwise permitted under the Act. However, these rules are silent on providing notice of meetings to the public. As a best practice, the Ombudsman suggested  the Board amend its rules to require that adequate notice of meetings be provided to the public.

The Ombudsman received complaints about the meeting practices of the Board of Directors for the City of Hamilton Farmers’ Market. The complainant alleged that the Board is a local board and therefore subject to the open meeting rules under the Municipal Act, 2001. The Ombudsman found the Hamilton Farmers’ Market is not a local board but rather a municipal services corporation, and is therefore not subject to open meeting rules. Section 21 of O. Reg 599/06 under the Act states that a municipal services corporation is “not a local board for the purposes of any Act.”

The Ombudsman reviewed two meetings held by the City of Hamilton Farmers’ Market. The Ombudsman found that the Hamilton Farmer’s Market is a municipally controlled corporation. Its letters patent establish it as a not-for-profit corporation, without share capital. The City of Hamilton is the sole shareholder and voting member of the corporation. In addition, the City appoints the entire Board of Directors. Accordingly, the Ombudsman made suggestions under his general municipal jurisdiction to improve local governance of the Hamilton Farmers’ Market.

The Ombudsman reviewed two meetings held by the City of Hamilton Farmers’ Market Board of Directors. The Ombudsman determined the Hamilton Farmers’ Market is a municipal services corporation. As municipal services corporations are deemed not to be local boards by section 21 of O. Reg 599/06 under the Municipal Act, 2001, the Board is not subject to the open meeting rules under the Act.

The Ombudsman received complaints about vote results displayed to the public during electronic meetings held by the City of Hamilton. The complainants alleged that the results of a vote held by the City’s Board of Health during an electronic meeting on February 19, 2021, were not entirely visible to the public, contrary to the open meeting rules outlined in the Municipal Act, 2001. The City agreed to continue monitoring its electronic meeting software and to take appropriate measures to ensure that the vote results of electronic meetings are displayed in their entirety. 

The Ombudsman reviewed an electronic meeting held by the LGBTQ advisory committee for the City of Hamilton. The Ombudsman found that during the open portion of the meeting, the public livestream was unavailable due to technical issues. Accordingly, the Ombudsman found that while the livestream was down, the public was excluded from the meeting and the meeting was illegally closed.

The Ombudsman reviewed the City of Hamilton’s General Issues Committee closed session to discuss events that may take place in the city in 2022 or 2023. The resolution to go into closed session stated “that Committee move into Closed Session respecting Items 13.2 to 13.4”. Item 13.2 of the meeting minutes is titled “Potential for Major Events in 2022 and 2023 (PED20071) (City Wide)”. The Ombudsman found that the resolution to proceed in camera was sufficiently descriptive to provide information to the public without undermining the reason for excluding the public.  

The City of Hamilton’s General Issues Committee met in closed session to discuss events that may take place in the city in 2022 or 2023. The committee cited the negotiations exception when it moved in camera. During the discussion the committee reviewed a confidential staff report and staff confirmed that negotiations between the city and other parties were ongoing. The committee also provided staff with direction on how to proceed in negotiations. The Ombudsman found that the four-part test for the exception for negotiations was satisfied because while in camera, the committee formulated a plan and directed staff with respect to the municipality’s ongoing negotiations regarding potential events that may take place in 2022 or 2023.  

The Ombudsman found that the change in the start time of the City of Hamilton’s City Manager recruitment Steering Committee on February 9, 2019, did not violate the Municipal Act, 2001 or the city’s procedure by-law, as it was within the notice requirement set out in the by-law. However, the Ombudsman noted that the city failed to ensure that the new meeting start time was updated in all areas on its website.

The Ombudsman found that the City of Hamilton’s City Manager Recruitment Steering Committee was permitted to hold its meeting outside of the municipality and neighbouring municipalities under the Municipal Act, 2001 and the city’s procedure by-law. The Ombudsman found that s. 236 of the Municipal Act, which requires the council of a municipality to hold its meetings in the municipality or an adjacent municipality, did not apply the committee.

The Ombudsman found that the February 9, 2019, meeting of the City of Hamilton’s City Manager Recruitment Steering Committee was illegally closed to the public when members of the public were prevented from attending the open portions of the meeting. While the public was denied entrance to the meeting by staff at the venue without the city’s knowledge, the Ombudsman found it was the city’s responsibility to ensure that the public could attend and observe the meetings.

The Ombudsman found that the City Manager Recruitment Steering Committee for the City of Hamilton did not violate the Municipal Act, 2001 on February 9 and 23, 2019, when it met in camera under the personal matters exception to conduct interviews for the city manager position and to discuss the suitability of individual candidates for the position.

The Ombudsman reviewed complaints that the doors to Hamilton city hall were locked during part of a council meeting, and that the doors were barricaded during part of a committee meeting. The city acknowledged that the doors were locked and blocked during the meetings, and took prompt steps to ensure the doors were open and accessible once the issue was flagged to city staff. The city also subsequently adopted a formal procedure to ensure staff check that all meetings in city hall have ended before locking or blocking access to entrances. The Ombudsman commended the city for adopting the procedure, and encouraged it to ensure all staff are informed of it going forward.

A vote by the City of Hamilton’s Selection Committee with regard to an appointment to its police service board was permitted in camera because it was a direction to staff to bring the recommendation forward at a future council meeting.

The City of Hamilton’s General Issues Committee met in closed session to discussion the municipality’s contribution to the local Canadian Football League (CFL) team’s bid for the Grey Cup championship game. The committee cited the negotiations exception when it moved in camera. During the discussion the committee reviewed staff’s negotiations with the CFL team up to that point, and discussed whether or not to approve a recommended financial contribution. The committee also provided staff with specific steps on how to proceed in negotiations. The Ombudsman found that the four-part test for the exception for negotiations was satisfied because while in camera, the committee formulated a plan and directed staff with respect to the municipality’s ongoing negotiations with the CFL team.

The City of Hamilton’s General Issues Committee met in closed session to discuss the municipality’s contribution to the local Canadian Football League team’s bid for the Grey Cup championship game. The committee cited the exception for information belonging to the municipality when it moved in camera. The city claimed that the information discussed was a trade secret because it included details about how the city allocates funding to large-scale events generally. The city also claimed that the information had monetary value because if the amount of the city’s contribution was disclosed, it would negatively affect the city’s competitive position for the Grey Cup bid and other large-scale events in the future. The Ombudsman found that the information was not a trade secret but qualified as financial information. The Ombudsman also found that the information belonged to the municipality. However, the Ombudsman found that the while the city may suffer economic loss if the information were disclosed, there was no indication that the information itself had any monetary value. Accordingly, the Ombudsman found that the discussion did not fit within the exception for information belonging to the municipality.

The City of Hamilton’s General Issues Committee met in closed session to discuss the municipality’s contribution to the local Canadian Football League team’s bid for the Grey Cup championship game. The committee cited the solicitor-client privilege exception, however the Ombudsman found that legal advice was not discussed during the closed session. The discussion did not fit within the exception.

The City of Hamilton’s General Issues Committee met in closed session to receive legal advice regarding the appropriateness of a topic for in camera consideration. The Ombudsman found that the discussion fit within the solicitor-client privilege exception because the committee received legal advice from the city solicitor and discussed the legal advice.

The City of Hamilton’s General Issues Committee received legal advice regarding a council vacancy during the closed meeting. The city did not contravene the open meeting rules when it discussed advice subject to solicitor-client privilege in camera as the discussion fit within the exception. The committee did not vote regarding the vacancy while in camera. As there was no vote or informal consensus reached, the city did not contravene the voting provisions in the Municipal Act, 2001.

Members of council for the City of Hamilton did not contravene the open meeting rules in the Municipal Act, 2001 when they exchanged emails regarding a vacant council seat in June 2018. The new definition of “meeting” in the Act requires that a quorum be present, such that an exchange of emails cannot be considered a meeting subject to the open meeting rules. In the interest of openness and transparency, municipal councils should continue to avoid conducting business outside of a formal meeting.

The Ombudsman reviewed meetings held by the Waste Management Advisory Committee for the City of Hamilton. The committee is a committee of council subject to the open meeting rules, as at least 50% of its members are members of council. The municipality failed to post notice of two meetings of the committee in contravention of the Act. While the municipality posted a regular meeting time for the committee on its website, it did not indicate a location. The two meetings in question also took place at a time different from that posted. The Ombudsman recommended the municipality ensure it always provide notice before meetings of the committee, and that the municipality amend its procedure by-law to provide for notice of advisory committee meetings.

The Ombudsman reviewed a closed meeting held by the General Issues Committee for the City of Hamilton. The Ombudsman found that the meeting minutes failed to provide any information about the closed session discussions. The Ombudsman recommended that council keep complete, detailed and accurate records of all matters discussed during closed meetings, and that council make audio and/or video recordings of its closed meetings.

The Ombudsman reviewed a closed meeting held by the General Issues Committee for the City of Hamilton to discuss a confidential appendix to a report that included information about a parcel of land the municipality was considering purchasing. The meeting was closed under the exception for matters permissible to be closed under another act. The committee relied on the exception because the local police services board had previously discussed the matter in closed session under the Police Services Act. The police service board relied on the “intimate personal/financial matters” exception in the Police Services Act to hold the discussion in closed session. The Ombudsman found that the discussion fit within the exception for matters permissible to be closed under another act.

The Ombudsman reviewed a closed meeting held by council for the City of Hamilton to receive legal advice from the municipality’s solicitor regarding altering a contract with a consultant. The meeting was closed under the exception for solicitor-client privilege. The solicitor identified options for council with respect to the contract and risks associated with those options. The Ombudsman found that council’s discussion fit within the exception for solicitor-client privilege.

The Ombudsman reviewed a closed meeting held by council for the City of Hamilton that relied on the exception for acquisition or disposition of land to hear a presentation by McMaster University about a proposal to acquire lands owned by the local school board for a campus. The Ombudsman found that the presentation and council’s discussion did not fit within the exception because it was not the municipality or a local board that would be acquiring or disposing of the land. A school board is not a local board for the purposes of the Municipal Act, 2001.

The Ombudsman reviewed a closed meeting held by the General Issues Committee for the City of Hamilton to discuss the dissolution of the board of directors of a corporation. The meeting relied on the personal matters exception. The committee’s discussions were general in nature and related to the board of directors as a whole. There was no information provided about the board members in their personal capacity. Therefore, council’s discussion did not fit within the personal matters exception.