The Ontario Ombudsman has ruled two closed-session meetings that took place in 2018 concerning the Collingwood Judicial Inquiry were warranted.
The ombudsman’s report will be considered as part of Monday’s regular meeting of council. According to the report, a complaint was filed in 2021 over two closed session Collingwood council meetings that took place on Feb. 26, 2018 and June 11, 2018, questioning whether they were necessary to occur in closed session under the Municipal Act.
The closed sessions preceded council's public votes to call the inquiry in February and to hire lawyer Will McDowell and Lenczner Slaght in June as the town's legal representation for the inquiry.
The complainant is not identified in the report.
“Council for the Town of Collingwood did not contravene the Municipal Act ... when it received legal information and advice in camera on Feb. 26, 2018 about the hydro share sale and potential judicial inquiry ... (and) when it went in camera on June 11, 2018, to discuss fee quotes for prospective legal representation at the judicial inquiry,” noted Paul Dubé, Ombudsman of Ontario.
Dubé notes that the town did not make audio or video recordings of its closed sessions at the time, but has since adopted the practice of audio recording all closed sessions, as well as video recording and broadcasting live streams of council meetings.
He also noted that his office received full co-operation from town staff and involved parties.
At the Feb. 26, 2018 meeting, council voted to establish the judicial inquiry into the 2012 sale of a 50 per cent stake in the town’s municipal power utility to Powerstream and the use of resulting proceeds for recreational facilities.
The agenda and resolution posted online described the closed-meeting discussions as including a “Hydro Share Sale update.”
“During the closed session, council received legal advice from both (a retained) solicitor and its regular solicitor respecting the sale and the potential judicial inquiry. The closed session minutes reflect these discussions,” wrote Dubé.
McDowell was the lawyer on retainer at the time, and was hired to look into the share sale. At the conclusion of his investigation, he recommended a judicial inquiry, stating his research turned up more questions than answers into the matter.
McDowell gave a presentation on his investigation and recommendations during the public session of council on Feb. 26, 2018 prior to the council vote calling the inquiry.
The complaint to the Ombudsman alleged that council inappropriately excluded the public from its discussion about a potential judicial inquiry, citing the exception for solicitor-client privilege as the basis for discussing this matter in-camera.
“During the closed meeting on Feb. 26, 2018, council received advice from its solicitors that was intended to be confidential,” wrote Dubé. “Therefore, the in-camera discussion about the hydro share sale fit within the exception for solicitor-client privilege cited by council.”
The same complaint was made about a June 11, 2018, closed session of council, which also stated solicitor-client privilege as the reason for council going in camera.
“The closed-session minutes state that the town’s chief administrative officer provided council with an overview of the judicial inquiry process and advised of the need for independent counsel to represent the town’s interests at the inquiry,” noted Dubé.
The closed session matters that were discussed pertained to hiring a lawyer to represent the town. According to Dubé’s report, town's CAO asked three firms for quotes to represent the town at the inquiry and received two responses, which were presented to council in closed session. The responses included fee quotes as well as a proposed strategy for representing the town at the inquiry.
Though solicitor-client privilege doesn't apply to a discussion about a solicitor's hourly rate, but the Ombudsman report noted the June 11, 2018 closed session discussion went beyond rates to also include strategy for representing the town and the firm's relevant expertise and projected overall costs.
“While the closed session did not include a lawyer from either firm, the CAO presented both quotes and council proceeded to discuss them,” wrote Dubé.
McDowell was no longer on retainer with the town by this time, but his office was one of the two that provided a response to the request from the CAO.
“The exception for solicitor-client privilege allows municipal councils to go into closed session to discuss ‘advice that is subject to solicitor-client privilege, including communications necessary for that purpose.’ Therefore, the exception covers discussions of legal advice and communications related to seeking and receiving that advice,” he wrote.
Dubé concluded that this discussion was subject to privilege even though no solicitors were present.
Following the closed session, council voted during open public session in favour of hiring McDowell to represent the town during the inquiry.
According to the town's breakdown of judicial inquiry costs, the town paid Lenczner Slaght $1.46 million for counsel during the inquiry. That amount is in addition to $179,971 in the town's legal counsel bills paid to other law offices. Costs for the inquiry, as reported by the town, totalled $8.2 million.
The Ontario Ombudsman’s report (available here) is part of the agenda package for Monday's (Jan. 24) council meeting, which starts at 5 p.m. and is streamed on the Town of Collingwood’s municipal meeting YouTube channel here.
