Niagara Falls, City of

The Ombudsman received a complaint alleging that council for the City of Niagara Falls held a closed meeting on April 12, 2022 that did not comply with the requirements in the Municipal Act, 2001. The complainant alleged that the City turned off the camera that was broadcasting the council meeting after staff requested a brief break in order to prepare a response to a question asked by the Mayor. The complainant expressed concern that council may have held a closed meeting during this break while the camera was turned off. The Ombudsman found that the City did not contravene the open meeting requirements on April 12, 2022 when council took a break during the meeting in order for staff to caucus. The Ombudsman’s review indicated that nothing during the 25-minute break moved council business forward or materially advanced the City’s business or decision-making. Accordingly, the gathering of council during the break did not constitute a closed meeting in contravention of the Act.

The Ombudsman received a complaint that the Governance Committee for the Niagara Falls Downtown Business Improvement Area failed to indicate in its January 12, 2022 meeting agenda that it would proceed in camera. The Ombudsman found that the Committee was entitled to proceed in camera because there are no specific notice requirements outlined in the Municipal Act, 2001 or in the BIA’s by-laws for in camera meetings or discussion items.

The Ombudsman received a complaint that the Governance Committee for the Niagara Falls Downtown Business Improvement Area lacked quorum when it met on January 12, 2022. The Ombudsman determined that there was a quorum of the Committee present during the meeting.

The Ombudsman reviewed a closed meeting held by the Governance Committee for the Niagara Falls Downtown Business Improvement Area on January 12, 2022. The Committee did not report back to the public following its closed session about the nature of the in camera discussion. The Ombudsman recommended reporting back as a best practice to increase transparency of the closed meeting process.

The Ombudsman reviewed a closed meeting held by the Governance Committee for the Niagara Falls Downtown Business Improvement Area on January 12, 2022. The Ombudsman found that the Committee passed a resolution to proceed in camera that included a general description of the matter to be considered in closed session, in accordance with s.239(4) of the Act.

The Ombudsman reviewed a closed meeting held by the Governance Committee for the Niagara Falls Downtown Business Improvement Area on January 12, 2022. The Ombudsman found that the Committee received detailed information about an identifiable individual’s job performance and behaviour while in closed session. Accordingly, the Ombudsman found that the Committee’s discussion fit within the exception to the open meeting rules for discussions about personal matters about an identifiable individual.

The Ombudsman received a complaint alleging that meetings of the Board of Directors of the Niagara Falls Hydro Holding Corporation are improperly closed to the public in contravention of the Municipal Act, 2001. The Ombudsman’s review found that the corporation is a municipally controlled corporation and not subject to the open meeting rules found in the Municipal Act, 2001. The Ombudsman also determined that the corporation has not violated its internal meeting rules in closing its Board meetings to the public.

The Ombudsman received a complaint alleging that meetings of the Board of Directors of the Niagara Falls Hydro Holding Corporation are improperly closed to the public in contravention of the Municipal Act, 2001. The Ombudsman determined that the corporation is  not subject to the open meeting rules found in the Municipal Act, 2001 because 1) the corporation is not a local board as it was incorporated under a section of the Electricity Act, 1998 which deems it not to be a local board and 2) the corporation is not a committee of council as it does not function as a committee. That is, it does not exercise delegated authority from council and it does not play an advisory role to council.

The Ombudsman found that a closed meeting held by council for the City of Niagara Falls on November 17, 2020 to discuss the process for establishing a Chief Administrative Officer recruitment sub-committee did not fit within any exception under the Municipal Act, 2001.

The Ombudsman emphasized that council cannot bring a matter in camera simply because it is considered sensitive or confidential or potentially against the City’s interests to discuss it publicly. The Legislature, in its enactment and occasional amendments to the Municipal Act, 2001 has not created an exception that authorizes meeting in camera for the purposes cited by the City.

The Ombudsman investigated a closed meeting held by council for the City of Niagara Falls on November 17, 2020 to discuss the process for establishing a Chief Administrative Officer recruitment sub-committee. 
The Ombudsman found that council failed to describe the subject to be discussed in closed session in its resolution to proceed in camera. Council further contravened the Municipal Act, 2001 when it passed a resolution to go in camera during a portion of the meeting that was effectively closed to the public, as the public was unable to attend in person or observe a live broadcast. 

The Ombudsman recommended that council ensure the description of the issue(s) to be discussed in closed session be provided in an accurate manner that maximizes the information available to the public while not undermining the reason for its exclusion. The Ombudsman also recommended that council ensure that its resolutions to proceed in camera are passed during open session, recorded in the meeting minutes, and captured by the live broadcast.

The Ombudsman investigated a closed meeting held by council for the City of Niagara Falls on November 17, 2020 to discuss the process for establishing a Chief Administrative Officer recruitment sub-committee. The Ombudsman found that the discussion focused on the procurement of a third party recruitment firm and the process for establishing the sub-committee. Accordingly, the closed session discussion did not fit within the exception for labour relations. The exception for labour relations refers to discussions about the collective relationship between an employer and its employees. The purpose of the exception for labour relations is to protect discussions relating to the relationship between the two.  

The Ombudsman emphasized that council cannot bring a matter in camera simply because it is considered sensitive or confidential or potentially against the City’s interests to discuss it publicly. The Legislature, in its enactment and occasional amendments to the Municipal Act, 2001 has not created an exception that authorizes meeting in camera for the purposes cited by the City. The discussion in closed session did not fit within any of the exceptions contained in the Act and should have occurred in open session.

The Ombudsman reviewed a meeting held by the City of Niagara Falls where council met in closed session prior to the regular meeting to discuss the potential designation of the Niagara River as a protected wetland. The municipality’s solicitor was present during the meeting and provided legal advice to council. The Ombudsman found that this advice fit within the “solicitor-client privilege” exception.

The Ombudsman reviewed a meeting held by the City of Niagara Falls. Council met in closed session prior to the regular meeting. Council’s resolution stating the general nature of the subjects to be discussed in camera was not broadcast live. The Ombudsman found that this contravened the requirements of section 239(4)(a) of the Municipal Act, 2001. The Ombudsman recommended that the City ensure that the public is able to observe all open portions of electronic meetings including the resolution to go in camera.

The Ombudsman reviewed a closed meeting held by council for the City of Niagara Falls to discuss information supplied in confidence by another level of government. The Ombudsman found that the resolution to proceed in camera did not provide any information about the subject matter of the discussion other than the exception authorizing the closed session. Instead, this information was provided in the notice of special meeting. The Ombudsman encouraged the City to ensure that resolutions to enter closed session provide the public with a general description of the subject matter to be considered in camera, while balancing the need to protect confidential and sensitive information from disclosure.

The Ombudsman reviewed a closed meeting held by council for the City of Niagara Falls. During the meeting, council voted to direct staff and officers of the municipality. The Ombudsman found that the vote was permissible as it was a direction to staff and officers related to council’s in camera discussion.

The Ombudsman reviewed a closed meeting held by council for the City of Niagara Falls to discuss information supplied in confidence by another level of government. The Ombudsman found that the federal government explicitly, in writing, supplied information to the City in confidence regarding a specific development and funding proposal. Accordingly, the discussions related to this information were permissible for closed session consideration.

The Ombudsman reviewed a closed meeting held by council for the City of Niagara Falls to discuss in camera the sale of property. The city audio records its closed session meetings. The closed session minutes for the meeting did not reflect council’s discussion or resolutions. The Ombudsman noted that audio recordings should not replace the written records as required by the Municipal Act, 2001. While an audio recording can provide a record of discussions held in camera, in this case, the audio recording of the closed session was of low quality, and it was difficult to hear all statements and to attribute statements to particular individuals.

The Ombudsman reviewed a closed meeting held by council for the City of Niagara Falls. The meeting was closed under the acquisition or disposition of land and the solicitor-client privilege exceptions. The Ombudsman found that the meeting fit within the cited exceptions. During the closed session, council voted to direct staff to consider the matter further when council returned to open session. The Ombudsman found that the vote was procedural in nature and was permissible.

The Ombudsman reviewed a closed meeting held by council for the City of Niagara Falls to discuss in camera the sale of property. During the meeting, council did not vote on whether to sell the land under consideration, but rather voted to have the matter put to council for consideration in open session, which is a procedural matter. The Ombudsman noted that council should take care to avoid language that suggests council in open session is ratifying or confirming decisions already made in camera, when instead council is making a decision in open session related to a matter discussed in camera.

The Ombudsman reviewed a closed meeting held by council for the City of Niagara Falls to discuss in camera the sale of property. At the time of the meeting, a sale price for the land had been established; however, no final decision had been made about whether or not the municipality would accept the offer. The Ombudsman found that since council was still free to reject the offer or to negotiate a different agreement, the discussion fit within the acquisition or disposition of land exception.

The Ombudsman reviewed a closed meeting held by council for the City of Niagara Falls that relied on the exception for solicitor-client privilege to discuss a proposal to develop a university campus in the municipality’s downtown area. Council’s discussion focused on a development funding partnership with a post-secondary institution. The municipality’s solicitor was present during the closed session; however, the Ombudsman found that he did not provide any legal advice or participate in the discussion. Therefore, council’s discussion did not fit within the exception for solicitor-client privilege.

The Ombudsman reviewed a closed meeting held by council for the City of Niagara Falls to discuss whether the municipality should partner with a post-secondary institution to apply for development funding. The Ombudsman noted although reporting back is not a requirement of the Municipal Act, 2001, council passed a resolution in open session that provided the public with information about the discussion held in camera.

The Ombudsman reviewed a closed meeting held by council for the City of Niagara Falls. The meeting was closed under the acquisition or disposition of land and solicitor-client privilege exceptions. During the meeting a vote took place directing staff to take action regarding a funding application. The Ombudsman found that the closed meeting did not fall under the cited exceptions. The Ombudsman found that the vote, although it was a direction to staff, was improper because the closed meeting was not authorized.

The Ombudsman reviewed a closed meeting held by council for the City of Niagara Falls to discuss a proposal to develop a university campus in the municipality. The meeting was closed under the acquisition or disposition of land exception. During the discussion, staff provided information on the potential effect of the development on municipally-owned properties, and the possibility of expropriation. The Ombudsman found that at the time of the meeting, there were no land transactions in progress and council was not taking practical steps to dispose of its properties. Rather,  council was primarily concerned about the sensitive nature of the business information discussed. Therefore, council’s discussion did not fit within the acquisition or disposition of land exception.

The Ombudsman reviewed a meeting held by the council for the City of Niagara Falls. Council went into closed session before a regularly scheduled meeting. While notice of the regular meeting was provided to the public, there was no notice of the closed session that would be held before the regular meeting. The Ombudsman found that some media outlets had received information about the closed meeting, although the public had not. As a result, the public was denied notice of the closed meeting.

The Ombudsman reviewed a closed meeting held by council for the City of Niagara Falls that relied on the exception for solicitor-client privilege to discuss a lease proposal from Marineland for municipal property. During the meeting, council discussed legal advice received from the municipality’s solicitor with respect to the lease. The Ombudsman found that the discussion fit within the exception for solicitor-client privilege.

The Ombudsman reviewed a closed meeting held by council for the City of Niagara Falls to discuss possibly partnering with a post-secondary institution to apply for development funding. The Ombudsman found a number of issues with the municipality’s procedure by-law. The Ombudsman recommended that the municipality update its procedure by-law to reflect updated notice provisions for regular and special council meetings, public posting of agendas for open and closed sessions, and council’s practice of meeting at 5:00 p.m. for regular meetings.

The Ombudsman reviewed a closed meeting held by council for the City of Niagara Falls to discuss a consultant’s report on a proposal to develop a university campus in the municipality. The meeting was closed under the acquisition or disposition of land exception. The municipality believed that the consultant’s report contained sensitive business information and should be confidential. The Ombudsman found that public disclosure of council’s discussion might have affected the municipality’s bargaining position with respect to the parcelling of land. However, the discussion did not address how the properties were to be appraised or sold, and there was no discussion of disposing of specific properties. Securing a competitive advantage with respect to attracting municipal development is not a basis for closing a meeting under the acquisition or disposition of land exception. Therefore, the Ombudsman found that council’s discussion did not fit within the acquisition or disposition of land exception.

The Ombudsman reviewed a closed meeting that was held before a regular open meeting by council for the City of Niagara Falls. Public notice was provided for the open meeting in accordance with the municipality’s procedure by-law, but there was no formal notice of the closed meeting because council relied on the media to publicize it. The Ombudsman found that the municipality did not meet the notice requirements of the Municipal Act, 2001 because it relied on the media to publicize the closed session and no direct notice was provided to the public.

The Ombudsman reviewed a closed meeting held by council for the City of Niagara Falls to discuss staff conduct related to a future university campus located in the downtown area of the municipality. The discussion also included questions about whether the mayor and certain staff members had complied with their professional obligations. The Ombudsman found that council’s discussion did not include topics that were inherently personal in nature. Rather, questions about staff conduct were general in nature or about individuals in their professional capacities. Therefore, council’s discussion did not fit within the personal matters exception.

The Ombudsman reviewed a closed meeting held by council for the City of Niagara Falls. Council met in closed session to discuss security concerns related to a member of the public. The meeting was closed under the security of the property exception. The municipality’s solicitor was also present during the discussion. The Ombudsman found that the discussion did not fit within the security of the property exception since council’s discussion did not involve security of the municipality’s property. The Ombudsman noted that a more appropriate exception would have been “personal matters about an identifiable individual” or “advice that is subject to solicitor-client privilege.”