Explainer: Why Hamilton City Council's Niagara-on-The-Lake Resort and Spa Meeting Was IIlegal Under The Municipal Act

Hamilton City Councillors met at a five-star four-diamond resort in Niagara-on-the-Lake on Saturday, this post explains the law surrounding municipal meetings in Ontario, and why Hamilton City Council’s Resort and Spa meeting violated the Municipal Act.

Creatures of the Province

Municipal governments, such as the Corporation of the City of Hamilton, are often referred to as “creatures of the province“. This is because municipalities are not in the British North America Act (the law which created Canada in 1867), and exist only by provincial legislation to carry out provincial responsibilities under the BNA at a local level.
In Ontario, there are 444 municipalities. The municipalities are created, and governed by, the Municipal Act as well as their incorporating act. For Hamilton, this is the City of Hamilton Act 1999.
[The City of Toronto is one of the 444 municipalities, but is governed by the City of Toronto Act, not the Municipal Act.]
All meetings of Hamilton City Council must comply with these Acts, other Acts, and their related regulations.
On Saturday, February 9, 2019, Mayor Fred Eisenberger invoked special powers to hold a meeting of his City Manager Recruitment Steering Committee at the White Oaks Resort and Spa in Niagara-on-the-Lake.
This meeting was illegal.

The Municipal Act Open Meeting Requirements

The Municipal Act requires all meetings held by Hamilton City Council to be open to the public, Section 239 (1).

239 (1) Except as provided in this section, all meetings shall be open to the public. 2001, c. 25, s. 239 (1).

There are a limited number of exceptions in Section 239 (2) of The Municipal Act, including “(b) personal matters about an identifiable individual, including municipal or local board employees;”. This is why portions of the public meeting on February 9, 2019 were permitted to be in closed session.
What constitutes a meeting? Section 238 of The Act provides the definition:

238 (1) In this section and in sections 239 to 239.2,

“committee” means any advisory or other committee, subcommittee or similar entity of which at least 50 per cent of the members are also members of one or more councils or local boards; (“comité”)

“local board” does not include police services boards or public library boards; (“conseil local”)

“meeting” means any regular, special or other meeting of a council, of a local board or of a committee of either of them, where,

(a) a quorum of members is present, and

(b) members discuss or otherwise deal with any matter in a way that materially advances the business or decision-making of the council, local board or committee. (“réunion”) 2001, c. 25, s. 238 (1); 2006, c. 32, Sched. A, s. 102 (1, 2); 2017, c. 10, Sched. 1, s. 25 (1).

The City Manager Recruitment Steering Committee is a committee, its entire membership being Council members. The Resort and Spa meeting materially advanced the decision making of Council.
The meeting was required to be open to the public.

Conflict of Interest Declarations

All Municipal Act meetings must begin with declarations of Conflict of Interest, under the Municipal Conflict of Interest Act. This is done in public, and is one of the most important aspects of any public meeting.
[For conflict related to an in-camera item, the Councillor only states they have a conflict, but are not required to disclose the general nature of the conflict]
As the Resort and Spa meeting had no open session, the meeting failed to include proper declarations of conflict of interest. This is a violation of the Municipal Conflict of Interest Act.

The Municipal Act Meeting Location Laws

The Municipal Act states:

236 (1) The council of a municipality shall hold its meetings and keep its public offices within the municipality or an adjacent municipality at a place set out in the municipality’s procedure by-law; however, in the case of an emergency, it may hold its meetings and keep its public offices at any convenient location within or outside the municipality. 2001, c. 25, s. 236 (1).

The key statement regarding the Resort and Spa meeting is “or an adjacent municipality at a place set out in the municipality’s procedure by-law”.
What does adjacent municipality mean?
John Mascarin, who has been practising municipal law for 30 years and is one of Ontario’s foremost experts on the Municipal Act’s open meeting provisions, explained on CHCH news Sunday night that Niagara-on-the-Lake is not an adjacent municipality.
The adjacent municipalities to Hamilton are (counter-clockwise): Burlington, Milton, Puslinch, North Dumfries, the County of Brant (not Brantford which is a single-tier surrounded by Brant and does not border Hamilton), Haldimand County, West Lincoln, and Grimsby.
Niagara-on-the-Lake is not an adjacent municipality.

Procedural By-Laws

Even if Niagara-on-the-Lake were an adjacent municipality, the Municipal Act requires meetings be held “at a place set out in the municipality’s procedure by-law”.
This is very specific language. There are only a handful of by-laws which the Municipal Act explicitly states a municipality must have, the Procedural By-Law is one.
The purpose of the adjacent municipality in the Act is to enable small municipalities to access adequate public meetings facilities when a matter of public interest requires a large facility that is not available within their town, township, or village.
It is not intended for a large municipality such as Hamilton with numerous adequate public meeting facilities. [When I worked for Maclean’s, I covered Oshawa City Council meetings which were moved from Oshawa City Hall to a veteran’s club hall to provide for adequate public seating]
The Procedural By-Law must set out the place for the meeting, the White Oaks Resort and Spa is not named as a location within the City of Hamilton Procedural Bylaw.
The passing of Procedural By-law requires a public notice period, and upon passing the By-law may be appeal to the Local Planning Appeal Tribunal or Ontario Superior Court.
A citizen could petition to find a Procedural By-Law allowing for Hamilton City Council to hold meetings outside of Hamilton is unreasonable on the grounds that all possible necessary facilities for public meetings exist within the boundaries of the City of Hamilton.

City of Hamilton Meeting Locations

Acting City of Hamilton Clerk Janet Pilon says the City’s special powers allow for the Resort and Spa meeting, claiming that Section 5.5(2) of the City of Hamilton Procedural By-Law authorized the meeting.

(2) In addition to regular meetings, a special meeting of a Standing Committee
may be scheduled, when required, at locations and times to permit
convenient access for members of the public most affected by such a matter.

Putting aside that a desire to hold a meeting at a White Oaks Resort and Spa is not a municipal emergency justifying the invoking of special provisions, let’s unpack Section 5.5(2) as cited.
Section 3.3 of the Procedural By-Law states:

3.3 Location of Meetings
Meetings of Council shall be held in the Council Chambers at City Hall in the
City of Hamilton or at such other place within the City of Hamilton as Council
may from time to time determine.

5.5(2) does not state that it is overriding 3.3. In fact, 5.5(2) is nested under the heading of Section 5.5 which is “Regular Meeting Times of Standing Committees”.
5.5(1) is a list of the regular meeting times of the Standing Committees.

(1) Unless otherwise decided by Council, regular meetings of the Standing
Committees shall be as follows:
(a)(i) General Issues Committee shall meet on the first and third Wednesday
of every month commencing at 9:30 a.m.; (13-319)
(ii) Board of Health shall meet on the third Monday of every month
commencing at 1:30 p.m.; (13-319)
(iii) Public Works Committee shall meet on the first and third Monday of
every month commencing at 9:30 a.m.;

5.5 pertains only to the meetings of Standing Committees, and the City Manager Recruitment Steering Committee is not a Standing Committee.
Therefore, Section 3.3 requiring meetings be held within Hamilton applies.

“Locations and times to permit convenient access for members of the public most affected by such a matter”

The exception cited by Acting City Clerk Janet Pilon states that the location and time must be chosen for the convenience of the public. The Niagara-on-the-Lake Spa and Resort meeting was the opposite of convenient.