Bill 159, Transparency in Public Matters Act, 2009

Versions

Bill 159 2009

An Act to require that meetings of provincial and municipal boards, commissions and other public bodies be open to the public

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Purpose and Application

Purpose

1. The purpose of this Act is to ensure that the meetings of designated public bodies at which deliberation or decision making occurs are open to the public and that the minutes of those meetings are made available to the public.

Application

2. (1) This Act applies to the following designated public bodies:

1. Public bodies that are designated in Part I of Schedule 1 to this Act or that are prescribed as designated by the regulations made under this Act.

2. Public bodies that belong to a type that is designated in Part II of Schedule 1 to this Act or to a type that is prescribed as designated by the regulations made under this Act.

Exception

(2) If a designated public body referred to in subsection (1) performs an adjudicative function, this Act does not apply to meetings of that body that are held with respect to that function.

Open Meetings and Minutes

What constitutes a meeting

3. (1) A meeting of a designated public body occurs for the purposes of this Act if the following conditions apply:

1. The entire membership of the body or a specified number of members, such as a committee or other designated division of the body, is entitled to attend the meeting.

2. The purpose of the meeting is to deliberate on or do any thing within the jurisdiction or terms of reference of the body, committee or other division.

3. The number of members in attendance constitutes a quorum or, in the absence of a quorum requirement in the rules or terms of reference of the body, committee or other division, a majority.

Same

(2) A meeting includes an electronic or telephone meeting to which the conditions described in subsection (1) apply.

Notice of meetings

4. (1) A designated public body shall give reasonable notice to the public of every one of its meetings by providing the information described in subsection (2) in accordance with section 6.

Contents of notice

(2) A notice provided under subsection (1) shall set out,

(a) the date, time and location of the meeting;

(b) a clear, comprehensive agenda of the items to be discussed at the meeting; and

(c) if the meeting is an electronic or telephone meeting, information on how the public body will ensure, in accordance with section 8, that members of the public are able to exercise, without difficulty, their right to attend the meeting under subsection 7 (1).

New agenda items

5. (1) A designated public body shall not propose the addition of a new item to an agenda mentioned in clause 4 (2) (b) unless,

(a) the proposed new agenda item relates to a matter which, in the opinion of the chair of the public body, requires the immediate attention of the public body, and the public body has provided notice of the proposed new agenda item in accordance with section 6; or

(b) the proposed new agenda item relates to an emergency situation that poses a significant threat of danger to life, health, property or the environment.

Two-thirds majority vote required to amend agenda

(2) For a proposed new agenda item described in clause (1) (a) to be added to the agenda for a meeting, two-thirds of the members of the designated public body who are present and entitled to vote must vote at the beginning of the meeting to add the proposed new item to the agenda.

Majority vote required to amend agenda

(3) For a proposed new agenda item described in clause (1) (b) to be added to the agenda for a meeting, a majority of the members of the designated public body who are present and entitled to vote must vote at the beginning of the meeting to add the proposed new item to the agenda.

Publication

6. For the purposes of subsection 4 (1) and clause 5 (1) (a), the designated public body shall ensure that best efforts are made to give notice,

(a) by posting the notice in a publicly accessible location that is appropriate in the circumstances;

(b) by publishing the notice on the public body's website; and

Meetings to be open

7. (1) A designated public body shall ensure that its meetings are open to the public.

Exceptions

(2) Despite subsection (1), a designated public body may exclude the public from any part of a meeting if,

(a) financial, personal or other matters may be disclosed of such a nature that the desirability of avoiding public disclosure of them in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that meetings be open to the public;

(b) a person involved in a civil or criminal proceeding may be prejudiced;

(d) personnel matters involving an identifiable individual, including an employee of the designated public body, will be discussed;

(e) negotiations or anticipated negotiations between the designated public body and a person, bargaining agent or party to a proceeding or an anticipated proceeding relating to labour relations or a person's employment by the designated public body will be discussed;

(f) litigation affecting the designated public body will be discussed or instructions will be given to or opinions received from solicitors for the designated public body;

(g) matters prescribed by the Lieutenant Governor in Council under clause 26 (b) will be discussed; or

(h) the designated public body will deliberate whether to exclude the public from a meeting, and the deliberation will consider whether one or more of clauses (a) through (g) are applicable to the meeting or part of the meeting.

Motion stating reasons

(3) A designated public body shall not exclude the public from a meeting before a vote is held on a motion to exclude the public, which motion must clearly state the nature of the matter to be considered at the closed meeting and the general reasons why the public is being excluded.

Taking of vote

(4) The meeting shall not be closed to the public during the taking of the vote on the motion under subsection (3).

Role of body re electronic meetings

8. If a designated public body holds an electronic or telephone meeting, the body shall ensure that members of the public are able to exercise, without difficulty, their right to attend the meeting under subsection 7 (1).

Minutes

9. (1) A designated public body shall keep minutes of its meetings in accordance with this section.

Minutes – requirements

(2) The minutes of meetings shall,

(a) be clear and neutral; and

(b) contain sufficient detail to adequately inform the public of the main subject-matters considered, any deliberations engaged in and any decisions made.

Minutes to be made available

(3) A designated public body shall ensure that best efforts are made, at the same time as the minutes are made available to the members of the designated public body and whether the minutes have been adopted or not,

(a) to post the minutes in a publicly accessible location that is appropriate in the circumstances; and

(b) to publish the notice on the public body's website.

Minutes when public excluded

(4) If a designated public body excludes the public from a meeting under subsection 7 (2), before making the minutes available to the public under subsection (1), the designated body may remove details that would reveal any information that was the basis for excluding the public under subsection 7 (2), but shall not remove any more details than are necessary.

Decisions made when public excluded

(5) If a designated public body makes a decision at a meeting or part of a meeting from which the public is excluded, the minutes shall clearly record the decision and provide as much detail as is reasonably possible without disclosing any information that was the basis for excluding the public under subsection 7 (2).

Other Duties of Designated Public Bodies

Rules

10. (1) By the end of its third meeting after the day this Act comes into force, a designated public body, having regard to the purpose set out in section 1, shall make rules respecting,

(a) how public notice of its meetings shall be given;

(b) how public notice of new agenda items shall be given;

(d) how rules made under this subsection and amendments made under subsection (2) shall be made available to the public.

Amendment or revision of rules

(2) A designated public body may amend the rules made under subsection (1) at any time.

Compliance with ss. 9, 10

11. By the end of its third meeting after this Act comes into force, a designated public body shall appoint a member of the body to be responsible for overseeing compliance by the body with section 9 and with the rules made under section 10.

Complaints and Reviews

Complaint to the Commissioner

12. (1) A person who has reasonable grounds to believe that a designated public body has contravened or is about to contravene a provision of this Act may make a written complaint to the Information and Privacy Commissioner appointed under the Freedom of Information and Protection of Privacy Act.

Time for complaint

(2) A complaint made under subsection (1) shall be made within one year after the day on which the matter giving rise to the complaint first came to the attention of the complainant or should reasonably have come to his or her attention.

Response of Commissioner

13. (1) On receiving a complaint made under subsection 12 (1), the Commissioner shall,

(a) inform the relevant designated public body of the nature of the complaint; and

(b) give the designated public body an opportunity to respond to the complaint.

Same

(2) On receiving a complaint made under subsection 12 (1), the Commissioner may,

(a) require the complainant and designated public body to attempt to reach a settlement within a time period specified by the Commissioner; and

(b) authorize a mediator to review the complaint and to try to effect a settlement, within a time period that the Commissioner specifies, between the complainant and the designated public body.

Dealings without prejudice

(3) If the Commissioner takes an action under clause (2) (a) or (b) but no settlement is reached within the specified time period, none of the information disclosed in the process of attempting to settle the complaint shall be used or disclosed outside the attempted settlement, including in a review of a complaint under this section or in an inspection under section 16, unless all parties expressly consent.

Commissioner's review

14. (1) If the Commissioner does not take any action under clause 13 (2) (a) or (b) or has done so but no settlement is reached within the specified time period, the Commissioner may review the complaint if he or she is satisfied that there are reasonable grounds to do so.

No review

(2) The Commissioner may decide not to review a complaint if, in the Commissioner's opinion,

(a) the designated public body about which the complaint is made has provided a response that, in the Commissioner's opinion, resolves all of the Commissioner's concerns with respect to the complaint;

(b) undue prejudice to any person would likely result from the review because of the length of time that has elapsed between the date that the matter that is the basis of the complaint arose and the date the complaint was made, even if the complaint was made within the time permitted under subsection 12 (2);

(d) there is any other reason that, in the Commissioner's opinion, makes a review inappropriate in the circumstances.

Notice

(3) If the Commissioner decides not to review a complaint, he or she shall give notice to the complainant and the relevant designated public body and shall specify the reasons for the decision.

Commissioner's self-initiated review

(4) If the Commissioner has reasonable grounds to believe that a designated public body has contravened or is about to contravene a provision of this Act, the Commissioner may, on his or her own initiative, conduct a review of the designated public body in relation to the suspected contravention.

Notice

(5) If the Commissioner decides to conduct a review under this section, the Commissioner shall give notice to the complainant, if any, and the affected designated public body.

Conduct of Commissioner's review

15. (1) In conducting a review, the Commissioner shall act at all times with regard to the purpose of this Act.

Rules of procedure

(2) In conducting a review under section 14, the Commissioner may make rules of procedure as the Commissioner considers necessary.

Non-application of SPPA

(3) The Statutory Powers Procedure Act does not apply to a review by the Commissioner under section 14.

Evidence

(4) In conducting a review, the Commissioner may receive and accept any evidence and other information that the Commissioner sees fit, whether on oath, by affidavit or otherwise and whether or not it is or would be admissible in a court of law.

Inspection powers

16. (1) Subject to subsections (2) and (3), in conducting a review under section 14, the Commissioner may, without a warrant or court order, enter and inspect any premises in accordance with this section if,

(a) the Commissioner has reasonable grounds to believe that,

(i) the designated public body under review is using the premises for a purpose related to the suspected contravention of this Act, and

(ii) the premises contains documents or things relevant to the suspected contravention of this Act; and

(b) the Commissioner is conducting the inspection for the purpose of determining whether the public body has contravened or is about to contravene a provision of this Act or its regulations.

Time of entry

(2) The power to enter and inspect a premises without a warrant may be exercised only during the place's regular business hours or, if it does not have regular business hours, during daylight hours.

Entry to dwellings

(3) The Commissioner shall not, without the consent of the occupier, enter a place that is being used as a dwelling, except under the authority of a search warrant issued under subsection (4).

Search warrants

(4) Where a justice of the peace is satisfied by evidence on oath or affirmation that there are reasonable grounds to believe it is necessary to enter a place that is being used as a dwelling to investigate a matter in relation to a review, he or she may issue a warrant authorizing the entry by a person named in the warrant.

Review powers

17. (1) In conducting a review, the Commissioner may,

(a) demand, in writing, the production of any document or thing relevant to the review or copies of extracts from documents; and

(b) use any data storage, processing or retrieval device or system belonging to the designated public body being investigated in order to produce a record in readable form of any document relevant to the review.

Obligation to assist

(2) If the Commissioner makes a demand for any document or thing under subsection (1), the person with custody of the document or thing shall produce it to the Commissioner and, at the request of the Commissioner, shall provide whatever assistance is reasonably necessary, including using any data storage, processing or retrieval device or system belonging to the designated public body.

Commissioner may either copy or remove documents

(3) If the Commissioner requests a copy of any document produced to him or her, the person with custody of the document shall either,

(a) copy the document, in which case he, she or it may charge the Commissioner a reasonable recovery fee; or

(b) permit the Commissioner to remove the document from the premises, in which case the Commissioner shall issue a written receipt.

Return of documents

(4) If the Commissioner removes any document from a place under clause (3) (b), he or she may make copies of the document and shall promptly return it to the person who produced it.

Admissibility of copies

(5) A copy certified by the Commissioner as a copy is admissible in evidence to the same extent, and has the same evidentiary value, as the document copied.

Answers under oath

(6) In conducting a review, the Commissioner may, by summons, in the same manner and to the same extent as a court of record, require the appearance of any person before the Commissioner and compel him or her to give oral or written evidence on oath or affirmation.

Document privileged

(7) A document or thing produced by a person in the course of an inquiry is privileged in the same manner as if the inquiry were a proceeding in a court.

Protection

(8) Except on the trial of a person for perjury in respect of his or her sworn testimony, no statement made or answer given by that or any other person in the course of a review by the Commissioner is admissible in evidence in any court or at any inquiry or in any other proceedings, and no evidence in respect of proceedings before the Commissioner shall be given against any person.

Protection under federal Act

(9) The Commissioner shall inform a person giving a statement or answer in the course of a review by the Commissioner of the person's right to object to answer any question under section 5 of the Canada Evidence Act.

Representations

(10) An opportunity to make representations before the Commissioner shall be given to,

(a) the person who made the complaint, if the review is related to a complaint;

(b) the designated public body whose activities are being reviewed; and

Representative

(11) A person who has the right to make representations to the Commissioner may be represented by counsel or another person.

Access to representations

(12) The Commissioner may permit a person to be present during the representations that another person makes to the Commissioner or to have access to them unless doing so would disclose any information for which a designated public body would be entitled under subsection 7 (2) to exclude the public from a meeting.

Proof of appointment

(13) If the Commissioner or Assistant Commissioner has delegated his or her powers under this section to an officer or employee of the Commissioner, the officer or employee who exercises the powers shall, on request, produce the certificate of delegation signed by the Commissioner or Assistant Commissioner, as the case may be.

Commissioner may make orders

18. (1) After conducting a review of the activities of a designated public body, the Commissioner may,

(a) make an order that voids a decision, recommendation or action made by the designated public body at a meeting that did not conform to the requirements of this Act;

(b) make an order directing the designated public body to perform a duty imposed by this Act;

(c) make an order directing the designated public body to change, cease or not commence any practice with respect to any matter within the scope of this Act;

(d) make an order directing the designated public body to implement a practice specified by the Commissioner with respect to any matter within the scope of this Act if the Commissioner determines that the practice is necessary in order to achieve compliance with this Act.

Contents of order

(2) The Commissioner shall include with any order made under subsection (1),

(a) written reasons for the order; and

(b) a written notice that the designated public body affected by the order has the right to appeal described in section 19.

Copy of order

(3) On making an order, the Commissioner shall promptly provide copies of the order and reasons to,

(a) the complainant, if the Commissioner made the order following the review of a complaint made under subsection 12 (1);

(b) the designated public body whose activities the Commissioner reviewed; and

No order

(4) If, after conducting a review, the Commissioner does not make an order, the Commissioner shall give the complainant, if any, and the designated public body whose activities the Commissioner reviewed a notice that sets out the Commissioner's reasons for not making an order.

Appeal of order

19. (1) A designated public body affected by an order of the Commissioner made under subsection 18 (1) may appeal the order to the Divisional Court on a question of law by filing a notice of appeal within 30 days after receiving a copy of the order.

Certificate of Commissioner

(2) In an appeal under this section, the Commissioner shall certify to the Divisional Court,

(a) the order and a statement of the Commissioner's reasons for making the order;

(b) the record of all hearings that the Commissioner held in conducting the review on which the order is based;

(d) all other material that the Commissioner considers is relevant to the appeal.

Court order

(3) On hearing an appeal under this section, the court may, by order,

(a) direct the Commissioner to make the decisions and to do the acts that the Commissioner is authorized to do under this Act and that the court considers proper; or

(b) vary or set aside the Commissioner's order.

Enforcement of order

20. An order made by the Commissioner under this Act that has become final as a result of there being no further right of appeal may be filed with the Superior Court of Justice and on filing becomes and is enforceable as a judgment or order of the Superior Court of Justice to the same effect.

Further order of Commissioner

21. (1) After conducting a review under section 14 and making an order under subsection 18 (1), the Commissioner may rescind or vary the order or may make a further order if new facts relating to the subject-matter of the review come to the Commissioner's attention or if there is a material change in the circumstances relating to the subject-matter of the review.

Circumstances

(2) The Commissioner may exercise the powers described in subsection (1) even if the order that the Commissioner rescinds or varies has already been filed with the Superior Court of Justice under section 20.

Content of order, etc.

(3) Subsections 18 (2) and (3) and sections 19 and 20 apply, with necessary modifications, to a further order made under this section.

Commissioner

Delegation

22. (1) The Commissioner may in writing delegate any of the Commissioner's powers, duties or functions under this Act, including the power to make orders, to the Assistant Commissioner or to an officer or employee of the Commissioner.

Subdelegation by Assistant Commissioner

(2) The Assistant Commissioner may in writing delegate any of the powers, duties or functions delegated to him or her under subsection (1) to any other officers or employees of the Commissioner, subject to the conditions and restrictions that the Assistant Commissioner specifies in the delegation.

Confidentiality

(3) The Commissioner, the Assistant Commissioner and persons acting on behalf of or under the direction of either of them shall not disclose any information that comes to their knowledge in the course of exercising their functions under this Act unless,

(a) the disclosure is required for the purpose of exercising those functions;

(b) the information was obtained under subsection 17 (6) and the disclosure is required in a prosecution for an offence under section 131 of the Criminal Code (Canada) in respect of sworn testimony; or

(c) the disclosure is made to the Attorney General, the information relates to the commission of an offence against an Act or an Act of Canada and the Commissioner is of the view that there is evidence of such an offence.

Information in review or proceeding

(4) The Commissioner in a review under section 14 and a court, tribunal or other person, including the Commissioner, in a proceeding shall take every reasonable precaution, including, when appropriate, receiving representations without notice and conducting hearings that are closed to the public, to avoid the disclosure of any information for which a designated public body would be entitled under subsection 7 (2) to exclude the public from a meeting.

Not compellable witness

(5) The Commissioner, the Assistant Commissioner and persons acting on behalf of or under the direction of either of them shall not be required to give evidence in a court or in a proceeding of a judicial nature concerning anything coming to their knowledge in the exercise of their functions under this Act that they are prohibited from disclosing under subsection (3).

Immunity

23. No action or other proceeding for damages may be instituted against the Commissioner, the Assistant Commissioner or any person acting on behalf of or under the direction of either of them for,

(a) anything done, reported or said in good faith and in the exercise or intended exercise of any of their powers or duties under this Act; or

(b) any alleged neglect or default in the exercise in good faith of any of their powers or duties under this Act.

Offences

24. (1) A person, including a chair, a board member or an executive officer of a designated public body, is guilty of an offence if the person,

(a) wilfully obstructs the Commissioner or a person known to be acting under the authority of the Commissioner in the performance of his or her functions under this Act;

(b) wilfully makes a false statement to mislead or attempt to mislead the Commissioner or a person known to be acting under the authority of the Commissioner in the performance of his or her functions under this Act; or

(c) wilfully fails to comply with an order made by the Commissioner or a person known to be acting under the authority of the Commissioner under this Act.

Penalty

(2) A person who is guilty of an offence under subsection (1) is liable, on conviction, to a fine of not less than $2,500 and not more than $10,000.

Miscellaneous

Conflict

25. Subject to the regulations made under clause 26 (c), in the event of a conflict, this Act and its regulations prevail over any other Act or regulation, except to the extent that the other Act or regulation provides for greater openness of meetings or greater accessibility to minutes of meetings.

Regulations

26. The Lieutenant Governor in Council may make regulations,

(a) prescribing public bodies or types of public bodies as designated for the purposes of section 2;

(b) prescribing matters for the purposes of clause 7 (2) (g);

(c) providing for the resolution of a conflict between provisions in an Act or regulation other than as provided for by section 25.

Commencement

27. This Act comes into force on the day it receives Royal Assent.

Short title

28. The short title of this Act is the Transparency in Public Matters Act, 2009.

Schedule 1

Part I

1. The following are designated public bodies for the purposes of this Act:

Item Number	Name of Designated Public Body	Legislative Basis for Designated Public Body
1.	Council of the Ontario College of Social Workers and Social Service Workers	Section 4 of the Social Work and Social Service Work Act, 1998
2.	Council of the Ontario College of Teachers	Section 4 of the Ontario College of Teachers Act, 1996
3.	Ontario Lottery and Gaming Corporation	Section 2 of the Ontario Lottery and Gaming Corporation Act, 1999
4.	Ontario Municipal Board	Section 4 of the Ontario Municipal Board Act

Part II

2. The following are types of designated public bodies for the purposes of this Act:

Item Number	Type of Designated Public Body
1.	The board of directors, governors, trustees or other governing body or authority of a university in Ontario and any affiliated or federated college of a university that receives operating grants from the Government of Ontario.
2.	The board of directors, governors, trustees, commission or other governing body or authority of a hospital to which the Public Hospitals Act applies.
3.	The board of governors of a college of applied arts and technology.
4.	A board of health as defined in section 1 of the Health Protection and Promotion Act.
5.	The council of the College of a health profession or group of health professions established or continued under a health profession Act.
6.	A commission as established under section 174 of the Municipal Act, 2001.
7.	A council of a municipality.
8.	A district school board or school authority as defined in section 1 of the Education Act.
9.	A local services board or an area services board established under the Northern Services Boards Act.
10.	A municipal police services board established under section 27 of the Police Services Act.
11.	A public library board, a union board, a county library board or a county library co-operative board established or continued under the Public Libraries Act.
12.	A parks commission established or continued under a parks commission Act.
13.	A local health integration network that is continued under subsection 3 (1) of the Local Health System Integration Act, 2006 or incorporated by regulation under subsection 3 (3) of that Act.
14.	The board of a corporation that generates, transmits, distributes or retails electricity.
15.	The board of directors of a community care access corporation continued or established under section 2 of the Community Care Access Corporations Act, 2001.

EXPLANATORY NOTE

The Bill designates certain public bodies and types of public bodies and requires those designated public bodies to give reasonable notice to the public of their meetings and proposed additions to meeting agendas, and to ensure that the meetings are open to the public. A designated public body may exclude the public from a meeting if matters specified in the Bill are going to be discussed at the meeting. A designated public body is required to keep minutes of its meetings and to publish them. The Bill requires a designated public body to make rules respecting specified matters.

The Bill establishes a procedure by which a person who believes a designated public body has contravened or is about to contravene the Bill may make a complaint to the Information and Privacy Commissioner. The Commissioner is empowered to review the complaint and to undertake a review on his or her own initiative. The Bill sets out the powers the Commissioner may exercise when reviewing a suspected contravention, including the power to enter and inspect premises, to demand production of documents and things relevant to the review and to require any person to appear before the Commissioner to give evidence.

The Bill authorizes the Commissioner to make certain orders after a review, including an order that voids a decision made by a designated public body at a meeting that did not conform to the requirements of the Bill. It is an offence to wilfully fail to comply with an order of the Commissioner. The Bill sets out certain other powers of the Commissioner, including the power to delegate his or her powers, and makes it an offence to wilfully obstruct or attempt to mislead the Commissioner when he or she is performing functions authorized under the Bill.

Other provisions of the Bill are a conflict provision in the event of a conflict with another Act or regulation and a provision authorizing the Lieutenant Governor in Council to make specified regulations.