



COURT OF APPEAL FOR ONTARIO

CITATION: Ontario Ombudsman v. Hamilton (City), 2018 ONCA 502

DATE: 20180601

DOCKET: C64796

Doherty and LaForme JJ.A. and Himel J. (
ad
    hoc
)

BETWEEN

Ombudsman of Ontario

Appellant

and

City of Hamilton

Respondent

Robert A. Centa and Denise Cooney, for the appellant

Byrdena M. MacNeil, for the respondent

Heard: May 22, 2018

On appeal from the judgment of the Divisional Court
    (Matheson, Trimble and Sheard JJ.), dated August 28, 2017, reported at 2017
    ONSC 4865.

REASONS FOR DECISION

[1]

There are essentially two issues before the court on the appeal and the
    cross-appeal. On the appeal, the Ombudsman of Ontario (Ombudsman) argues that
    the Divisional Court erred in law in holding that neither the Election
    Compliance Audit Committee (Audit Committee), nor the Property Standards
    Committee (Standards Committee) was a local board within the meaning of s.
    14.1 of the
Ombudsman Act
, R.S.O. 1990, c. O.6.

[2]

The purposes of and the statutory provisions governing the Audit
    Committee and the Standards Committee are fully set out in the reasons of the
    Divisional Court. We need not repeat that exercise.

[3]

The City of Hamilton (the City) submits that the Divisional Court was
    correct in its interpretation of the phrase local board. Alternatively, on
    its cross-appeal, the City submits that even if the entities in question were
    local boards, the deliberation component of their proceedings did not
    constitute meetings within the meaning of s. 239(1) of the
Municipal Act,
    2001
, S.O. 2001, c. 25.

[4]

For the reasons that follow, we agree with the Divisional Courts
    conclusion that neither the Audit Committee nor the Standards Committee fall
    within the meaning of the phrase local board and, as such, the Ombudsman had
    no jurisdiction under s. 14.1 to investigate whether those entities had
    complied with s. 239 of the
Municipal Act
. In light of our conclusion
    on the main appeal, it is unnecessary to address the cross-appeal and we do not
    propose to do so.
[1]

the main appeal

[5]

Section 239(1) of the
Municipal Act
declares that all meetings
    shall be open to the public. There are exceptions to the requirement that the
    meetings be open to the public set out in the remainder of s. 239, but none of
    those exceptions are relevant here.

[6]

Section 239.1(b) of the
Municipal Act
provides that a person
    may request an investigation of whether a municipality or local board has
    complied with the public meeting requirement in s. 239. The Ombudsman, under s.
    239.1(b), may conduct that investigation. Section 14.1 of the
Ombudsman Act
dovetails with s. 239.1(b) of the
Municipal Act
by empowering the
    Ombudsman to investigate complaints made with respect to the failure to comply
    with the public meeting requirement of s. 239. The Ombudsman may investigate
    and report any conclusions and the reasons for those conclusions to the
    relevant municipality or local board. The Ombudsman may also make recommendations:
Ombudsman Act
, s. 14.1(7).

[7]

The Ombudsmans power to investigate for compliance with the open
    meeting requirement applies to municipalities or local boards:
Ombudsman
    Act
, s. 14.1(3). The operative definition of local board is found in s.
    1(1) of the
Municipal Act
:

Local board means a municipal service board, transportation
    commission, public library board, board of health, police services board,
    planning board, or any other board, commission, committee, body or local
    authority established or exercising any power under any Act with respect to the
    affairs or purposes of one or more municipalities, excluding a school board and
    a conservation authority.

[8]

Neither the Audit Committee nor the Standards Committee are among the
    entities specifically identified in the definition provided in s. 1(1). The
    Ombudsman argued, however, that both committees exercise power under
    legislation with respect to the affairs or purposes of one or more
    municipalities and are therefore local boards within the meaning of s. 1(1).

[9]

The Ombudsmans submission would have considerable force if the general
    language at the end of the definition of local board stood alone. It does
    not. That general language follows the identification of several specific
    entities as local boards. As this court recently observed in
Schnarr v.
    Blue Mountain Resorts Limited
, 2018 ONCA 313, at para. 52:

Where a class of things is modified by general wording that
    expands the class, the general wording is usually restricted to things of the
    same type as the listed items (
ejusdem generis
).

[10]

All
    of the named entities in the definition of local board provide services which
    are integral to the day-to-day operation of the business of municipalities.
    Neither the Audit Committee nor the Standards Committee provide the same kind
    of services.

[11]

The
    Audit Committee is an investigative/adjudicative body created to enforce
    provincially enacted laws relating to municipal election campaign funding. As
    observed by the Divisional Court, the Audit Committee was created to remove
    that oversight function from the municipality. The Audit Committee does not
    provide a municipal service in the same sense as the entities enumerated in the
    definition of local board.

[12]

The
    Standards Committee is an adjudicative body. Its purpose is to adjudicate
    disputes between the municipality and individuals dissatisfied with orders made
    by municipal officers concerning compliance with property standards bylaws. We
    agree with the Divisional Courts conclusion that the function of the Standards
    Committee is dramatically different than the function of the entities
    specifically identified in the definition of local board.

[13]

Applying
ejusdem generis
to the definition of local board, we are satisfied that the general
    language at the end of the definition does not include entities which cannot be
    said to carry on the operations of the municipality. The functions of the Audit
    Committee and the Standards Committee do not fall within that descriptor. They
    are not local boards. That, of course, does not mean that they are not subject
    to other legislation controlling the manner in which they are obligated to
    conduct their proceedings:  e.g. see
Statutory Powers Procedure
    Act
, R.S.O. 1990, c. S.22.

[14]

Consequently, we agree
    with the Divisional Court that the Ombudsman did not have jurisdiction under s.
    14.1 of the
Ombudsman Act
to investigate the alleged non-compliance by the Audit Committee or the
    Standards Committee with the open meeting requirement of s. 239 of the
Municipal
    Act
.

[15]

We would add, however,
    that we do agree with the Ombudsmans submission that the deliberative secrecy
    principle has nothing to do with the interpretation of the phrase local
    board in s. 1(1) of the
Municipal Act
. That principle would become relevant were this
    court to reach the merits of the cross-appeal.

the cross-appeal

[16]

In
    the cross-appeal, the City urges the court to draw a distinction between the
    deliberative component of the proceedings of the Audit Committee and the
    Standards Committee, and other aspects of their processes. Given the finding
    that neither is a local board, that distinction is unnecessary. We also note
    that on April 1, 2018, the
Municipal Elections Modernization Act
,
    2016, s. 65 came into force and repealed subsection 88.34 of the
Municipal
    Elections Act
. The new provision, which applies to the Audit Committee,
    reads:

Open Meetings

(9.1) The meetings of the Committee under subsection (9) shall
    be open to the public, but the Committee may deliberate in private. 2017, s.
    20, Schedule 10, (s. 2).

[17]

We
    need not further address the merits of the cross-appeal.

conclusion

[18]

The
    appeal is dismissed. The cross-appeal is dismissed as moot without considering
    the merits of the cross-appeal. The parties agree there should be no order as
    to costs.

Doherty J.A.

H.S. LaForme J.A.

Himel J. (
ad hoc
)





[1]

In the cross-appeal, the City also asked for a declaration
    that s. 14.1 did not apply to the deliberations of any of the Citys statutory
    adjudicative tribunals performing quasi-judicial functions. The Divisional
    Court declined to address the status of any tribunals other than the Audit
    Committee and the Standards Committee. We agree and also limit our reasons to
    those two committees.


