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KIRK MAKIN
Globe and Mail Update
June 21, 2007 at 12:28 PM EDT
The Supreme Court of Canada has issued a wake-up call for municipal councils across the country to conduct their business in open whenever possible.
In a 7-0 ruling, the court ruled that London City Council was wrong to hold a meeting in camera and then hastily pass a vote that put a freeze on a controversial development project.
The open meeting requirement reflects a clear legislative choice for increased transparency and accountability in the decision-making process of local governments, Madam Justice Louise Charron wrote. The city council’s conduct in closing the two meetings in question was neither inadvertent nor trivial.
Municipal law was changed to require that municipal government hold meetings that are open to the public in order to imbue municipal governments with a robust democratic legitimacy, she said.
University of Western Ontario law professor Samuel Trosow said it would be wrong to view the ruling as a victory for developers. What it really represents, he said, is an important endorsement of the public right to openness in the political process.
I think that the reason the Supreme Court took this case was that they wanted to make a very strong statement to the public about the right to open meetings, Prof. Trosow said. This is a case of interest to every city in Canada. I think that every city solicitor will be sending a memo to council today about it.
The dispute began in early 2004, when London City Council and its Planning Committee held two closed meetings without stating their purpose to debate an interim control by-law that would impose a one-year freeze on a portion of one of its main thoroughfares: Richmond Street.
The move came after one of the city’s biggest developers, RJS Holdings Inc., had moved to create a highly contentious student housing development.
Within eight minutes of concluding its second closed meeting, the full city council immediately voted to impose the freeze.
The developer challenged the by-law in the courts on the grounds that the city had breached a section of the province’s Municipal Act that requires council and committee meetings to be held in public.
The city argued that the act permits seven categories of exemption from its broad requirement for openness and that it had properly invoked a category allowing closed meetings when the subject matter of a debate involves potential litigation.
On appeal, the city changed tactics and began arguing that it can hold closed meetings when the subject matter is an interim control by-law. It also said that the way it dealt with the Richmond Street development freeze did not cause any prejudice to RSJ Holdings.
The Supreme Court strongly disagreed. It said that, while a council can justifiably hold a private meeting to deal with a wide range of topics, it cannot blithely dispense with the notion of at least giving advance notice or publicizing the nature of the meeting.
If anything, the enactment of an interim by-law given its powerful nature and potential Draconian effect on affected land owners enhances the need for transparency and accountability, Judge Charron said.
The democratic legitimacy of municipal decisions does not spring solely from periodic elections, but also from a decision-making process that is transparent, accessible to the public, and mandated by law.
