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Grimsby council “contravened” legislation

By Mike Williscraft

(for the full report in PDF format, please click here)

Ontario Ombudsman Paul Dube has determined the Town of Grimsby council side-stepped guidelines of the Municipal Act in discussing the possibility of having a valuation done for Niagara Power Inc. in closed session.

In its report, following through on a complaint filed by Grimsby resident Wayne Fertich, released on Monday, Dube outlined a series of circumstances researched by meeting with all town councilors and staff regarding the council meeting of May 2, 2016 as well as a series of occurances prior to that session. It was noted all cooperated fully with the investigation.

In the end, Dube found, “ Council for the Town of Grimsby contravened the Municipal Act, 2001 and the municipality’s procedure by-law when it discussed a matter in camera on May 2, 2016 that did not fall within any of the Act’s permitted exceptions.”

The issue of a valuation had been mentioned at several points through the spring, but at the April 4 meeting of council Ald. Dave Kadwell submitted a notice of motion, “Be it resolved that the Council of the Town of Grimsby hire a chartered business evaluator with experience in the energy sector to establish a business valuation of Niagara Power Inc. and its subsidiaries.”

However, at the April 18 meeting the motion was withdrawn, referred to council’s May 2 session.

Simply, none of the criteria cited by Grimsby officials held any water with Dube in terms of justifying the discussion of a possible valuation being conducted behind closed doors.

Some members of council told us they believe this exception was cited because the discussion pertained to the valuation of an asset, which is
municipal property. Other members suggested that, had the matter been discussed publicly, it could have impacted the value of the company.

However, all those interviewed agreed that no security threat was discussed during the closed meeting.

Other members suggested that, had the matter been discussed publicly, it could have impacted the value of the company. However, all those interviewed agreed that no security threat was discussed during the closed meeting.”

Dube’s report noted there was no justification to conceal the matter in camera due to concerns of negative impact to a Town property, adding any concerns on this aspect should be directed to the Ministry of Municipal Affairs.

“In this case, there was no apparent threat to the municipality’s property, either corporeal or incorporeal. Instead, council discussed whether to obtain a valuation of a municipally-owned corporation. The discussion did not fit within the exception for security of the property of the municipality,” it reads.

“While it did not fall within the exception for security of the property of the municipality, the subject of the in camera discussions appears to have been sensitive business or commercial information. There is no exception to the open meeting rules in the Municipal Act for discussions about sensitive commercial information.

As well, Dube found the matter did qualify under the “personal matters” exemption.

“The discussion did not fit within the exception for personal matters,” the reports reads.

For Fertich, who has been a long-time detractor of Niagara Power’s two recent major projects – the Sobie Road biodigester and the CoGen unit which sits on the lawn of town hall, and more recently the proposed sale of 25 per cent of hydro’s fibre optics company, the decision confirms his assertion that the governance of the utility and town council’s management of the affairs has been inappropriate at best.

“‘There have been a number of private meetings, May2, 2016 was just one of them, where the mayor and council have met to discuss Grimsby Power problems and how they will affect the Town and taxpayers,” said Fertich.

“There were no minutes taken or records kept of these meetings, contrary to the law. The Ontario Ombudsman has listened to the obfuscation and excuses given by the mayor and has made a bold statement that Council must follow in the future.”

“The improved transparency promised by the mayor at the last election, has clearly been ‘missing in action’.”

The ombudsman made five recommendations:

  1. All members of council for the Town of Grimsby should be vigilant in adhering to their individual and collective obligation to ensure that the municipality complies with its responsibilities under the Municipal Act, 2001 and its own procedure by-law.
  2. The Town of Grimsby should ensure that no subject is discussed in a closed session unless it clearly comes within one of the statutory exceptions to the open meeting requirements.
  3. The Town of Grimsby should implement the practice of audio or video recording its open and closed sessions.
  4. The Town of Grimsby should ensure closed session minutes are reviewed by council in accordance with its procedure by-law.
  5. The Town of Grimsby should update its procedure by-law to reflect all the closed meeting exceptions in the Municipal Act, 2001.

The report says the Town plans to start recording closed sessions.

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