August 2017
Hamilton Court Rules Compliance Audit Committees Not "Local Boards"

2017-08-29 3:03:57 PM

A division court judge in Hamilton has ruled that Election Compliance Audit Committees (CACs) and Property Standards Committees are not local boards under the Municipal Act. The ruling, set down yesterday, means that - barring an appeal from the Ombudsman - Election Compliance Audit Committees and Property Standards Committees will no longer be subject to closed meeting investigations by the Ontario Ombudsman. 

The ruling is the result of an application for judicial review, filed by the City of Hamilton following an Ombudsman investigation completed in July 2016. The investigation found that an Election Compliance Audit Committee meeting on July 15, 2015 was illegal under the Municipal Act's open meeting requirements. Specifically, the Ombudsman argued that the meeting happened behind closed doors, did not provide notice, follow procedure, receive legal advice, or fulfill any of the other exemptions the Municipal Act makes for moving an open meeting into closed session.  According to the Ombudsman's report on the investigation: 

"I have considered the submissions of the city and the committee and while I understand the committee's expressed need to be able to deliberate in private, I cannot find that the open meetings provision of the Municipal Act do not apply in this case. When the criteria considered by the courts int he context of analogous cases are applied, it is clear that compliance audit committees are local boards." (Page 14) 

Despite the Ombudsman's ruling, however, the City maintained that CACs are statutory adjudicative tribunals performing quasi-judicial functions, and thus not "local boards." The City's argument was based on the following: 

1) That compliance audit committees are not listed in the definition and general language in the Act, and further the fact that municipalities cannot dissolve compliance audit committees and assume their functions means that they are not local boards 
2) That under the ejusdem generis principle, CACs are not the same as local boards specifically listed in the Act's definition because they do not act on behalf of the City's interests and are not providing municipal services 
3) That the quasi-judicial decision-making function of CACs distinguishes them from local boards. 

In response, the Ombudsman argued that CACs

1) Carry on the affairs of the municipality 
2) That there is a direct link with the municipality either by way of legislation or through authority from the municipality 
3) That CACs are either connected or controlled by the municipality 
4) That there is an element of automny possessed by CACs

Ultimately the court sided with the City:

"I conclude that, interpreting the definition of 'local board' in its full statutory context and in harmony with the Municipal Elections Act, the Election Compliance Audit Committee is not a local board. It is an independent and impartial decision-making body with a mandate that is part of the Legislature's oversight of municipal elections. Its purpose, as set out in the Municipal Elections Act, is to make certain decisions that form part of the enforcement of election finance provisions in the Act, for which it is distance from the municipality in a manner that is inconsistent with a municipality's power to dissolve a local board. (Para. 66) 

Given my conclusion that the Election Compliance Audit Committee and the Property Standards Committee are not local boards, the Ombudsman does not have jurisdiction to investigate either of them under s. 14.1 of the Ombudsman Act or s. 239.1 of the Municipal Act... (Para. 76) 

I therefore grant an order declaring that the Ombudsman has no jurisdiction to investigate the Election Compliance Audit Committee or the Property Standards Committee under either s. 14.1 of the Ombudsman Act or s. 239.1 of the Municipal Act... (Para. 83) 

For more: 

Ontario ombudsman can't probe closed-door complaints about Hamilton tribunals: judge 

City of Hamilton v. Ombudsman of Ontario, 2017 

Ontario Ombudsman: Ombudsman Report - Investigation into a meeting held by the City of Hamilton's Election Compliance Audit Committee on July 15, 2015 


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