In Camera/Out of the Public Eye

The Latin term in camera (literally ‘in chambers’) is frequently, if somewhat ambiguously, used within the political context to refer to closed hearings and discussions that take place outside the purview of public scrutiny. Recognizing the value of accountable and transparent government, legislatures across Canada have taken pains to place limits on private, in camera meetings, ensuring citizens the right to watch their governments in action. Such is certainly the case in Ontario, in which municipal council and committee meetings are governed by the Municipal Act 2001, SO 2001, c 25, section 239(1) of which creates a general obligation to hold municipal meetings in public.

Recently the Supreme Court of Canada (“SCC”) considered London (City) v. RSJ Holdings Inc., 2007 SCC 29,  a case which helps to clarify the meaning of in camera as well as the contours of local governments’ responsibility to conduct their business openly. The outcome of the case also serves as a stern warning to municipalities across the country.

The Facts
In September of 2003, a group of residents complained to the City regarding the steady increase of university student housing in the Old North neighbourhood of London, located primarily in the area of Richmond Street between Huron and Grosvenor Streets. The City’s Planning Committee responded by resolving to study the issue.

In November, RSJ Holdings Inc. (“RSJ”), one of London’s largest developers, bought a piece of land on Richmond Street, intending to demolish the existing structure so as to make way for four individual residential units. RSJ applied to the City for all necessary permits and approvals. The City did not immediately respond to RSJ’s application.

In January of 2004 the City considered the question of student housing along the Richmond Street corridor in two closed meetings. During the first of these meetings, held on January 12, the City’s Planning Committee considered a draft interim control by-law that would freeze all development in the Richmond Street area. At the second meeting, held on January 19, the Committee of the Whole made two recommendations. First, they suggested that a land use study be undertaken. Second, that the City Council approve the interim control by-law freezing all development. Upon terminating this second closed meeting, City Council resumed its regular open session, during which 32 by-laws including the one in question were introduced, read and passed without debate or discussion. This public meeting lasted all of eight minutes.

Thus, on January 19, 2004, The City of London passed an interim control by-law creating a one-year freeze on all land development along the Richmond Street corridor between Huron and Grosvenor Streets. RSJ immediately applied for an order quashing the by-law for illegality on the basis that it was discussed and effectively decided at two closed-session meetings, contrary to the City’s statutory obligation under s. 239(1) of the Municipal Act.

Proceedings Below
RSJ’s application was initially dismissed by the Ontario Superior Court of Justice on the basis that the closed meetings fell within the exceptions under s. 239(2), particularly s. 239(2)(e), which allows for closed municipal meetings in instances in which litigation or potential litigation is the subject of discussion. The application judge did not feel it necessary to consider the City’s additional argument that the closed meetings also fell under the solicitor-client privilege exemption provided for under s. 239(2)(f).

On appeal to the Ontario Court of Appeal, the City adopted the further position that the meeting was squarely authorized under another statute, s. 38 of the Planning Act, RSO 1990, c P.13 , activating the exemption under s. 239(2)(g) of the Municipal Act. The Court of Appeal, however, was not swayed by any of the City’s three contentions, particularly that concerning potential litigation, and ruled to set aside the application judge’s decision.

In rendering its decision, the Court of Appeal was particularly concerned that the powerful nature of interim control laws should demand more, not less, transparency and accountability. In the words of Justice of Appeal Labrosse at paras 22 and 27:

“We observe that where the subject matter under consideration is an interim control by-law, it cannot be said that the subject matter under consideration is potential litigation simply because there is a statutory right of appeal by a person affected… The fact that there might be, or even inevitably would be, litigation arising from the interim control by-law does not make the “subject matter under consideration” potential litigation…”

“By virtue of s. 38(3) of the Planning Act, a municipality need not give prior notice or hold a public hearing before it passes an interim control by-law. However, the meeting in which Council is to consider and vote on the interim control by-law is to be open. In the face of the “draconian” nature of an interim control by-law and the reduction in rights of affected persons by virtue of s. 38(3) of the Planning Act, there is an even greater need that the meeting in which an interim control by-law is discussed be open to the public as required by s. 239(1) of the Act.”

At the SCC
At the Supreme Court, the city of London pursued their third line of argumentation, suggesting that under the provisions of the Planning Act an interim control by-law may be passed without prior notice and without a public hearing. The City argued that since s.38 of the Planning Act permits the passing of a by-law in such a fashion, it follows that there was nothing improper with the City’s in camera sessions. Like the Court of Appeal, the SCC, was unconvinced. In the words of Justice Charron, speaking for a unanimous court at para 44:

“The City’s conduct in closing the two meetings in question was neither inadvertent nor trivial. In fact its council meeting of January 19, 2004 was conducted in a manner that is rather reminiscent of the problems reported more than 20 years ago that led to the passing of the statutory open meeting requirement. It is worth repeating the words of the Working Committee quoted earlier: “some municipal councils employ lengthy, in-camera special and committee meetings to discuss matters under debate and then ratify their decision in full council in a few minutes, with minimal discussion”. In my view, the eight-minute public session during the course of which the interim by-law was passed without debate or discussion along with 31 other by-laws did nothing to cure the defect.”

Indeed, the SCC concluded that the City of London’s use of in camera sessions simply did not deserve the type of deference normally awarded to governmental decision-making. “When a municipal government improperly acts with secrecy, this undermines the democratic legitimacy of its decision, and such decisions, even when intra vires, are less worthy of deference” (para 38). If nothing else, the decision serves as a warning to Canadian municipal governments that the democratic legitimacy of government operations does not rest in the electoral process alone, but also from a “decision-making process that is transparent, accessible to the public, and mandated by law” (para 38).