Norfolk County

The Ombudsman found that the  resolutions to proceed into closed session passed by council for Norfolk County at meetings held on March 8, April 12, and May 10, 2022 provided general descriptions of the topics to be discussed in closed session, and therefore met the requirements of s. 239(4)(a) of the Municipal Act, 2001.

The Ombudsman reviewed a closed meeting held by council for the Norfolk County to discuss raising capital by selling municipal land under the “acquisition or disposition of land” exception. Although there was no pending land transaction, during the discussion disposition of specific lands was proposed and a target price per acre was set. The Ombudsman found that the municipality had a bargaining position to protect and the discussion fit within the “acquisition or disposition of land” exception.

The Ombudsman reviewed a closed meeting held by council for the Norfolk County to discuss reducing service levels in the municipality by eliminating staff positions and consolidating municipal facilities under the “personal matters” exception. The Ombudsman found that during the discussion, employees were identified by name or by position, and the discussion involved departments with a small number of employees. Had the committee’s discussions happened in public, these employees would have been easily identifiable. The discussion fit within the “personal matters” exception.  

The Ombudsman reviewed a closed meeting held by council for the Norfolk County to discuss reducing service levels in the municipality by eliminating staff positions and consolidating municipal facilities under the “labour relations” exception. The Ombudsman found generally discussions about organizational reviews do not fit within this exception. However, in this case, the committee’s discussions referenced identifiable employees and their roles. The discussion fit within the “labour relations” exception.  

The Ombudsman reviewed a closed meeting held by council for Norfolk County on March 26, at which a potential candidate for the vacant interim CAO position attended. Some council members described the closed session as a “very informal interview” with the candidate. The Ombudsman found the discussion of personal information about the candidate, and the candidate’s suitability for the position fit within the exception for personal matters about an identifiable individual.

The Ombudsman reviewed closed meetings held by council for Norfolk County on March 26 and April 2, 2019, and found that while Norfolk County’s meeting agendas on those dates provided detailed information about the matters to be discussed in closed session, the resolutions passed by council during the meetings did not include a description of the matters to be discussed.

The Ombudsman determined that council for Norfolk County did not contravene the Municipal Act, 2001 when it went in camera on March 26 and April 2, to discuss the hiring of an interim Chief Administrative Officer (CAO). The Ombudsman found that council’s receipt of legal advice from the county solicitor regarding ongoing contractual negotiations with a candidate for the interim CAO position, fit within the exception for advice subject to solicitor-client privilege.

The Ombudsman determined that council for Norfolk County did not contravene the Municipal Act, 2001 when it went in camera on March 26 and April 2, to discuss the hiring of an interim Chief Administrative Officer (CAO). The meetings relied partly on the exceptions for personal matters about an identifiable individual. This exception generally does not apply to information that pertains to an individual in their professional capacity, however, it does apply if such information reveals something personal or relates to scrutiny of an individual’s conduct. Accordingly, the Ombudsman found that the discussions about the hiring of a candidate for the interim CAO position, and the performance of identifiable staff members fit within the exception for personal matters for an identifiable individual.

The Ombudsman reviewed a closed meeting held by council for Norfolk County to receive a deputation from representatives of the Port Dover Community Health Centre Board. The meeting was closed using the exception for solicitor-client privilege. During the meeting, the municipality’s solicitor provided legal advice to council. The Ombudsman found that these portions of the closed meeting fit within the solicitor-client privilege exception.

The Ombudsman reviewed a closed meeting held by council for the County of Norfolk to receive a deputation from representatives of the Port Dover Community Health Centre Board. The meeting relied on the personal matters exception. The deputation related to the board’s operations and included a request that the county release an installment of a monetary grant. The municipality highlighted that the deputation contained information that could affect the personal lives of individual members of the board. The Ombudsman acknowledged that the board was composed of volunteers, however, the deputation contained information that was professional in nature and related to the business of the board. Accordingly, the Ombudsman found that the discussion did not fit within the personal matters exception.

The Ombudsman reviewed a closed meeting held by council for Norfolk County that relied on the exception for solicitor-client privilege to discuss the development of a site specific zoning by-law. The municipality’s solicitor was present during the meeting and provided advice to council pertaining the different options for the zoning by-law and possible appeal to the Ontario Municipal Board (OMB) pending council’s decision. 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 Norfolk County to discuss the development of a site-specific zoning by-law for an area in the county. The Ombudsman noted that there was some confusion about council’s direction to staff during its closed session. The Ombudsman found that this confusion may have been avoided had council reported back in open session its direction to staff during closed session. The Ombudsman recommended that despite not being required by the Municipal Act, 2001, it is a best practice for council to report back in camera discussions in open session.

The Ombudsman reviewed a closed meeting held by council for Norfolk County to discuss the development of a site-specific zoning by-law, relying on the solicitor-client advice exception. During the closed session, council received legal advice on the matter from the municipality’s solicitor. The Ombudsman considered the decision in Farber v. Kingston, which found that a description that only stated “legal matters” without more specifics was inadequate. In this case, the Ombudsman found that the resolution was sufficient as it contained a general description, which included the matter to be considered and the type of discussion that would ensue.

The Ombudsman reviewed a closed meeting held by council for Norfolk County to discuss the development of a site-specific zoning by-law. The meeting was closed under the litigation or potential litigation and solicitor-client privilege exceptions. During the closed meeting, council voted to provide direction to staff regarding the preparation of a draft by-law. The Ombudsman found that since the closed meeting fit within the cited exception and the vote was for a direction to staff, the vote was therefore permissible.

The Ombudsman reviewed a closed meeting held by council for the County of Norfolk that relied on the litigation or potential litigation exception to discuss the development of a site-specific zoning by-law. The Ombudsman noted that the municipality was aware that identifiable individuals planned to file an appeal of the enacted site-specific zoning by-law to the Ontario Municipal Board. The Ombudsman found that council’s discussion fit within the litigation or potential litigation exception because there was a reasonable prospect of litigation with respect to the site-specific zoning by-law.

The Ombudsman reviewed a closed meeting held by council-in-committee for Norfolk County that relied on the exception for solicitor-client privilege to discuss a request for proposals for a construction contract in the municipality. During the closed session, staff conveyed legal advice received regarding the vendors that had bid on the contract. The Ombudsman found that the discussion fit within the exception for solicitor-client privilege.

The Ombudsman reviewed a closed meeting held by council-in-committee for the County of Norfolk to discuss an application to the Human Rights Tribunal of Ontario. The meeting was closed under the litigation or potential litigation exception. At the time of the meeting, a tentative settlement had been reached in the matter but had not yet been approved by council. The Ombudsman found that the discussion was about an ongoing litigation matter before an administrative tribunal. Therefore, the discussion fit within the litigation or potential litigation exception.

The Ombudsman reviewed a closed meeting held by council-in-committee for Norfolk County to discuss the extension of legal services contracts with two law firms. The committee discussed the hourly rate proposed by each firm. While the municipality did not rely on the exception for solicitor-client privilege, the Ombudsman considered whether it would apply to the discussion. The Ombudsman found that it was unclear from existing jurisprudence whether the hourly rate of a lawyer (as opposed to the total amount of legal fees paid under a retainer) is presumptively sheltered under solicitor-client privilege. However, any presumption would be rebutted because the committee did not directly or indirectly reveal any communication protected by privilege by disclosing the lawyers’ hourly rate. Therefore, the Ombudsman found that the committee’s discussion did not fit within the exception for solicitor-client privilege.

The Ombudsman reviewed a closed meeting held by the council-in-committee for Norfolk County to discuss the extension of a legal services contract. The resolution to proceed in camera referred to a  “contractual matter” along with a list of other items to be discussed and the exceptions relied upon. The Ombudsman found that while the description of the discussion did provide the public with some idea about the committee’s intended discussion, the resolution could have included additional information without undermining the confidentiality of the matter. The Ombudsman recommended that the municipality ensure that resolutions to proceed in camera clearly specify which exception is being relied upon to discuss each matter.

The Ombudsman reviewed a closed meeting held by council-in-committee for the County of Norfolk to discuss the extension of legal services contracts. The meeting was closed using the personal matters exception. The discussion included scrutiny of the performance, responsiveness and expertise of individual lawyers. However, the majority of the discussion related to the fee structure proposed by each firm. The Ombudsman found that the portion of the committee’s discussion that related to personal information about the lawyers fit within the personal matters exception.

The Ombudsman reviewed a closed meeting held by council-in-committee for Norfolk County. The municipality’s procedure by-law requires that notice of meetings be posted on the municipal website and that the notice include a copy of the meeting agenda. The Ombudsman found that the county met the notice requirements of the procedure by-law. The Ombudsman also noted that there is no provision in the Municipal Act, 2001 requiring municipalities to provide advance notice of the matters to be discussed in closed session.