Douglas W. Judson
Council Adopts Flawed Report on Closed-Door Meeting
Updated: Mar 20, 2022
On January 10, 2022, Council of the Town of Fort Frances ["Town"] met in closed session (also called in-camera) to discuss an item of business described as “Personal matters about an identifiable individual, including municipal or local board employees: Correspondence from the general public raising personal matters about an identifiable individual”.
In my view, this meeting was illegally closed to the public. The closed meeting investigation which followed was riddled with legal and factual errors, leading to a different conclusion. The investigator, after being alerted to these concerns, failed to address any of them in his report or to make himself available to Council to answer questions. Council received and adopted his flawed report, without question or comment, on March 14, 2022.
By my reading, this investigation and report contain serious problems, including by (i) making statements of fact which are false, irrelevant, or based on no evidence; (ii) applying the wrong legal test; (iii) suggesting that the material considered on January 10 was defamatory or contained personal information, yet failing to identify any defamatory statements or personal information; and (iv) reaching an outcome that is inconsistent with the same investigator's findings concerning the exact same materials in a previous complaint.
The report is also, in several sections, incoherent. It does not assist the public or Council in better understanding the closed meeting requirements. This undermines the transparency of Council and is a disservice to the community we serve.
These errors raise a reasonable apprehension that this investigation process was directed towards running interference for administration and sheltering the misconduct of a member of Council from public scrutiny, rather than applying the law to reach a just determination. As I have previously written, the conduct of elected, politically-accountable officials must be considered in public. Unfortunately, my counterparts continue to ignore and shield one member's misconduct from view. This is out of step with our obligations of transparency and accountability to the public.
I have repeatedly called for the Ombudsman to be appointed as our closed meeting investigator, but Council has ignored these requests. The Ombudsman's services are free to municipalities and reach consistent outcomes in respect of closed meetings.
The Subject of the Complaint
The subject of the January 10 closed meeting was a January 5, 2022 letter that Council received from Peter Howie (see disclosure below) enclosing documents which he received from the municipal clerk in response to freedom of information request he submitted on August 16, 2021. The documents he received from the clerk are thus public documents, and Mr. Howie released his January 5 letter publicly and to the media.
The documents provided by Mr. Howie confirmed that Mayor June Caul leaked a copy of a privileged and confidential document to local realtor David Kircher back on June 22, 2021. This occurred between the June 14 and 28 meetings of Council, at both of which the Mayor invited Mr. Kircher to speak to Council to spread his "theories" about the Fort Frances mill and provincial forest licenses. The wider freedom of information productions received by Mr. Howie indicate that this was part of an ongoing campaign to cast aspersions on the work of our staff and advisors at the Rainy River Future Development Corporation.
On the resolution to go in-camera on January 10, I called a recorded vote. I voted “NAY”, because the subject matter was not a “personal matter” about any individual that would be identified by meeting in public. All other members of Council voted to take this item behind closed doors, as the minutes show. In my view, this was illegal.
On January 27, 2022, Mr. Howie submitted a complaint to the Town’s closed meeting investigator, Paul Heayn, concerning the January 10 meeting. Following an investigation, on March 14, 2022, Mr. Howie's letter of complaint was appended to the agenda of Committee of the Whole, along with Mr. Heayn’s resulting report.
The Law Governing Closed Meetings
Under section 239 of the Municipal Act, 2001 ["Act"], Council is required to meet in public other than in a limited set of circumstances. Section 239(2)(b) allows Council to meet behind closed doors “if the subject matter being considered is … personal matters about an identifiable individual, including municipal or local board employees”.
Under section 239.2 the municipality may appoint a closed meeting investigator “who has the function to investigate in an independent manner, on a complaint made to him or her by any person, whether the municipality … has complied with section 239” or the municipality’s procedural by-law governing closed meetings. The investigator is to report to Council on their investigation.
In the case of the Town, our procedural by-law incorporates by reference the basic requirements of the closed meeting rules in the Act. As such, the Act generally serves as a complete code governing closed meetings in our municipality.
If the municipality does not appoint its own closed meeting investigator, the Act designates that the provincial Ombudsman shall hold this role. The services of the provincial Ombudsman are free, and it is unclear why the Town has continued to remunerate a private investigator for this purpose.
Where Does the “Personal Matters” Exception Apply?
The law governing the use of the “personal matters” exception to open meetings is summarized in Mr. Howie’s January 27 letter to Mr. Heayn, which states:
Regulators have consistently stated that matters of a professional nature or which relate to the office of elected officials do not make out this section. For instance:
The provincial Ombudsman, in his role as closed meeting investigator for the Township of Emo, has stated that “[g]enerally, discussions of a council member’s actions in the course of their duties are considered to be of a professional nature and do not fall within the “personal matters” exception”[.]
In his role as closed meeting investigator for the Municipality of Temagami, the Ombudsman has reached similar conclusions, stating that “the information must be about individuals in their personal capacity, rather than their professional, official or business capacity”[.]
Likewise, the Information and Privacy Commissioner has stated that “to qualify as persona information, the information must be about the individual in a personal capacity. As a general rule, information associated with an individual in a professional, official or business capacity will not be considered to be “about” the individual”. (hyperlinks added, citations omitted)
Moreover, the Ombudsman’s Open Meetings Guide includes the following explicit statement concerning the use of the “personal matters” exception:
Personal matters about an identifiable individual – s. 239(2)(b) …
Does not include discussions about:
An individual in their professional or official capacity
Council members’ remuneration or expenses and related policy
General working relations between council and staff
Salary bands, a hiring process, or staff reorganization
Information already in the public realm (underlining added)
On this basis, it is clear that the matters contained in Mr. Howie’s January 5 letter do not qualify for this exception. The subject of his letter, and its enclosures, is the conduct of a Council member in their official capacity (their role as Mayor, sharing municipal information, using their municipal email account) and the records sent to Council by Mr. Howie consist of information already in the public realm (by being released to a member of the public by the clerk in response to a freedom of information request and already being published by Mr. Howie). The leaked legal opinion itself was not on the agenda for January 10 nor included in the records produced to Mr. Howie. It is not relevant to the closed meeting analysis.
It is noteworthy that that January 10 meeting was a continuation of a November 8, 2021 meeting – which was held in public session – to discuss the leak of the confidential information which had appeared in the local newspaper. The Mayor chaired that meeting, despite knowing she was responsible for the leak. Her comments during that meeting were reported in the November 10 edition of the Fort Frances Times as follows:
“We as councillors are well-versed in how we must present ourselves in the job we have been elected to do,” Caul said. “There are several others who were privy to this information as well. So we cannot just assume it was one of our members of council.” (underlining added)
Mr. Heayn's Investigation
A closed meeting investigator who receives a complaint about a meeting of Council is essentially tasked with answering 3 questions:
whether there was sufficient disclosure on the agenda for the public to know why the meeting was closed and that the closed session was proper;
whether there was sufficient basis for Council, disclosed in the agenda package or otherwise, to move into closed session based on section 239 of the Act; and
whether the discussions in-camera were appropriately limited to the topic of the closed meeting.
The closed meeting investigator has no jurisdiction, expertise, or legal authority to consider any unrelated subject matter, to reach unrelated legal conclusions, or to veer outside of this scope of inquiry. This limited realm of consideration is reflected in numerous decisions, including from the Court of Appeal, which has stated:
Section 239(1) of the Act requires that all meetings shall be open to the public unless the subject matter being considered comes within an exception listed in subsection (2). In light of the increased powers of municipalities, the mandatory wording of s. 239 that meetings "shall" be open to the public except in narrowly defined situations, and the specificity of the exceptions, it seems clear that the purpose of these provisions is to ensure that, in general, municipal authority is exercised openly. (emphasis added)
The Act explicitly requires the investigator to conduct his work with “independence and impartiality” and that “the credibility of the investigator’s investigative process” be paramount.
Unfortunately, Mr. Heayn’s report raises serious questions about whether he met these requirements. This is evident in 5 issues with his report which, respectfully, seriously impair its integrity, credibility, and independence. I will review each in turn.
Issue #1: The Investigator Makes Factual Statements without Evidence, or that are Untrue
To begin with, the investigator makes a number of factual findings in his report which are simply untrue, are irrelevant, or have no evidentiary basis. For instance:
Mr. Heayn indicates that the only person he interviewed in his investigation was the clerk. He did not complete an interview with the complainant or any other person. It is entirely unclear how he could substantiate any of the facts in his report, in keeping with his requirements of independence and impartiality, without further interviews. While the municipal administration is non-partisan, like all professionals, they will always have an interest in defending the advice and recommendations they have given. In this context, they may not be a neutral source of evidence.
Mr. Heayn provides comments in his report about discussions which he claims took place between the Mayor and the Deputy Mayor. Not only are these discussions irrelevant to the analysis he needed to perform, but he does not indicate where he obtained this information. I assume that this is hearsay from the clerk, which is not evidence.
Mr. Heayn states, "I was told that the municipality’s decision to discuss this matter in closed session was based on the legal advice it received." This is false. While staff may have obtained legal advice, no legal advice was shared with Council on or before January 10. In fact, when I asked for a copy of the legal opinion referred to in Mr. Heayn's draft report, staff refused to provide it to me (despite representing that Council made its decision based on this advice).
Mr. Heayn's report states that "Council did not have a copy of the documents that were obtained through [the] Freedom of Information and Protection of Privacy Act". This is patently false. The documents were appended to the January 10 closed meeting agenda and attached to Mr. Howie's letter, which was sent to members of Council directly.
Mr. Heayn's report states that "[t]hose documents are subject to solicitor-client privilege.” This is also false. The documents were not lawyer-client privileged as none of them were generated by a lawyer serving the municipality. If they were privileged, they would not have been produced by the clerk to a member of the public through freedom of information.
These factual findings and the limited and tangential fact-finding exercise that led to them create a false and unreliable foundation for Mr. Heayn's entire analysis which follows.
Issue #2: Misapplication of the "Personal Matters" Exception
Mr. Heayn then goes on to misapply the law to incorrectly find that the agenda item related to a “personal matter” (which it does not). As indicated above, the law is clear that matters pertaining to the performance of a public officeholder in their official capacity are not personal matters because they are not “about” that person. The report does not explain how any of the statements contained in the January 5 letter (or its public document enclosures) relate to a personal matter.
The report's discussion is actually muddled on this point, as it is entirely unclear whether Mr. Heayn is referring to "personal matters" about the Mayor or Mr. Kircher. However, it appears that he is relying, to an extent, on the definition of “personal information” from the Municipal Freedom of Information and Protection of Privacy Act ["MFIPPA"], to state that the meeting pertained to a “personal matter”, within the terminology of the Act.
While other decision-makers have relied on this concept for interpreting the closed meeting rules, it is not available in this case. The reason for that is that we are talking about documents that are already public records. The clerk would not have produced personal information to a member of the public under MFIPPA. Such information would have been withheld or redacted. As such, the documents, by definition, do not contain any personal information or Mr. Howie would not have been given them by the clerk.
The investigator himself fails to identify any specific types of “personal information” which would have been improperly disclosed if Council had met in public. For some reason, he has added further redactions to the materials which the clerk has already released as a public document. Again, the freedom of information request itself – which was included in the January 5 letter – asked for all of the correspondence between Mr. Kircher and a member of Council. From that, it is no mystery that Mr. Kircher’s name appears in these records, and they were publicly and properly disclosed on this basis, as the letter from the clerk, enclosed with Mr. Howie's letter, indicates.
So, in short, (i) there was no personal information nor any personal matter disclosed in the correspondence received by Council, (ii) the investigator has provided no legal authority supporting any alternate conclusion, and (iii) he appears to have tampered with public documents to shore up this misguided conclusion.
Issue #3: Flawed Analysis of "Legal Issues" for Municipality
The third error in the report is that the investigator concludes that Council was justified in meeting in closed session because doing otherwise would create “legal issues” for the municipality. Mr. Heayn does not specify what these legal issues are, and in fact, the legal issues he alludes to are not within his jurisdiction. In fact, as a non-lawyer, it is illegal for Mr. Heayn to provide legal advice or opinions on matters outside of his statutory duties as closed meeting investigator.
Again, the legal opinion about whether to meet in closed session, which administration claims to have received before January 10, was neither shared with nor presented to Council. Regardless, a legal opinion prepared for administration is not a source of law like a court decision or Ombudsman report – it is an opinion meant to defend a position that administration wishes to take.
If Mr. Heayn wanted a legal opinion he could rely on in his investigation, he needed to retain a lawyer to provide his office with advice. Despite various confusing references to an "independent solicitor" in his report, he did not do that. No independent lawyer was involved in this investigation.
The investigator goes on to spend some time in his report suggesting that Mr. Howie's letter could have resulted in a defamation claim against the municipality if it were published on the public agenda, this too is false. Mr. Heayn not only has no expertise or ability to make legal findings of defamation, but he did not retain anyone competent to advise him on this point, nor is it relevant to his analysis.
In fact, it is obvious, for several reasons, that the "defamation" concerns alluded to in the report are red herrings. Consider the following:
The letter from Mr. Howie contains documents produced under MFIPPA by the clerk and general statements summarizing their contents. The documents were generated by the individuals who would, in Mr. Heayn's logic, be making defamation claims. That makes absolutely no sense.
Even if the January 5 letter was defamatory, it would be defamatory whether it was shared in open or closed session, because in either case it is being published to an audience.
In any event, Mr. Heayn's report fails to identify a single statement which is or could be defamatory or false, and no legal threat or notice of libel was received by the municipality.
Even if this material was defamatory, its publication on an agenda would very likely attract defences of truth, fair comment, and responsible communication, and protection under Ontario’s anti-SLAPP laws. It may also attract qualified privilege. The investigator does not acknowledge this, presumably because he is relying on the legal advice administration claims it received to support its wish bury the document in a closed meeting. That advice is self-serving and, again, not independent or an authoritative source of law.
Finally, the investigator claims that the materials before Council were privileged, but fails to acknowledge that this closed meeting was not brought under the exception for Council to receive “advice that is subject to solicitor-client privilege”. If he believes the subject matter was privileged, he ought to have found that Council met behind closed doors under the wrong section of the Act. He did not. A letter from a member of the public cannot be privileged to Council.
Issue #4: The Report is Inconsistent with the Investigator's Own Prior Findings
The fourth issue with Mr. Heayn's report is that it is inconsistent with his own prior findings in reference to the same facts and publicly-disclosed documents.
In recent weeks, I was contacted by a member of the public, who I shall call "JL", who submitted a complaint to Mr. Heayn in his role as integrity commissioner. The complaint relied on the same public documents which were enclosed with Mr. Howie's letter. JL alleged that the Mayor had breached the sections of the Code of Conduct dealing with confidential information.
It is obvious that she did breach the Code of Conduct – leaking confidential information is a very clear, black-and-white violation. Yet Mr. Heayn, inexplicably, summarily dismissed JL's complaint without reporting to Council.
JL subsequently shared the letter he received from Mr. Heayn with me, in confidence. In it, Mr. Heayn reached the following conclusions in respect of the documents provided by JL:
He did not make any finding that they reflected a disclosure of confidential information (i.e., the same documents which he now claims, in response to a closed meeting complaint, are themselves confidential and/or privileged and which cannot be publicly disclosed); and
He states that "the records in question are already in the public realm", being the very words from the Open Meetings Guide requiring a public meeting (i.e., again, this is in reference to the same documents Mr. Heayn now claims cannot be made public on a public meeting agenda).
Simply put: Mr. Heayn's conclusions in response to JL's integrity complaint and Mr. Howie's closed meeting complaint cannot both be accurate and true at the same time. The only things these two reports appear to have in common is the consequence that the Mayor could avoid public scrutiny for her actions. This raises serious questions about the independence and impartiality of the investigation.
Issue #5: The Investigator's Report is Incoherent
As a final concern, it is troubling that Council would accept a report of such poor quality. There are entire portions of it which are incomprehensible. Part of the purpose of the closed meeting investigation process is to provide resources to the public and Council to better understand the required public meeting rules and transparency obligations of municipal bodies. This report fails to meet that purpose, and in fact, may embolden further abuse of closed meetings to shield matters of public interest from scrutiny.
As I stated, and was quoted in the March 16, 2022 Fort Frances Times, this is one of the lowest quality reports Council has received this term. I would have expanded on my specific concerns during the meeting, but Council now chooses to muzzle me by abusing points of order when they do not like what I have to say, or when what I have to say may bring misconduct to light.
Conclusion and Advice to the Public
Mr. Heayn asked for comments on his draft report from members of Council in early March. I provided him with a memorandum outlining the above-noted issues. He declined to consider my comments or to make himself available at the March 14 meeting to answer questions about his report.
Frankly, I am growing very tired of questionable professional services being provided to the municipality on taxpayer dollars. Council's failure to question the quality or sufficiency of this work is an abdication of not just its obligations of transparency in public meetings, but its duties to the public to provide financial oversight. This report appears to be yet another example.
As I have explained above, the report Council accepted from Mr. Heayn on March 14:
makes false findings of fact and findings based on irrelevant information and no evidence;
misapplies the legal test governing closed meetings and "personal matters";
makes claims of wrongly disclosing personal information and of defamation without identify any personal information or defamatory content; and
reaches conclusions which are inconsistent with his own prior conclusions based on the same public documents.
I have been disturbed by Council's selective commitment to transparency and our obligations under the Act. This report does not uphold public confidence in those commitments or good governance in the public interest.
If this is the degree of credibility, quality of analysis, and diligence of closed meeting scrutiny we can expect, my advice to members of the public with concerns about illegal meetings in the future would be to skip this process altogether, and instead bring an application to the Ontario Superior Court of Justice under sections 273 and 440 of the Act and rule 14.05 of the Rules of Civil Procedure. These sections will allow an applicant to attack the resolution to go into a closed meeting as illegal and provide relief with respect to any relevant municipal by-law which was not followed.
Mr. Howie is my common law spouse. He has also served as my legal counsel on occasion. I did not recuse myself from discussion of his letter on January 10 or the closed meeting report on March 14 because his letter merely brought public documents to our attention, and there is no pecuniary interest created by the closed meeting rules. Members are only required to recuse themselves from the discussion of matters in which they have a pecuniary interest. In any event, the interest I have in compliance with our open meeting rules is held in common with all members of Council and the public at large.