Ontario Court of Appeal allows Renaming of Kingston’s Market Square

Municipal & Planning Law Blog

August 23, 2007

Kingston's wealthy Springer family offered to donate $1,000,000.00 to the City of Kingston in support of a project to revitalize Market Square, on the understanding that the City then rename the square in honour of the family. In this regard, Kingston Council resolved on two occasions to go into closed session to consider "legal matters." While in camera, Council received reports from the Commissioner of Operations about the renaming, together with legal advice on Council's ability to rename and on an agreement to be entered into with the Springer family. The second closed meeting was followed immediately by a meeting open to the public at which Council voted to add to the agenda a by-law accepting the Springer donation and renaming the Square subject to an agreement being negotiated with the family. The by-law was debated in public for about one hour, and Council voted in favour of adopting the by-law. A Kingston resident, Ms. Corinne Farber, applied to the Ontario Superior Court of Justice to declare the two closed meetings in contravention of the Municipal Act and to quash the by-law for illegality.

Section 239(2)(f) of the Municipal Act allows the council of a municipality to meet while the public is excluded if the subject matter of the meeting is advice that is subject to solicitor-client privilege. The municipality must resolve that it is meeting to receive legal advice anthe application on the basis that the decision to adopt the by-law was made during the open meeting after debate; and that the subject-matter of the two in camera meetings placed the meetings within the ambit of section 239(2)(f) of the Municipal Act. Ms. Farber appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal, and in so doing, made some interesting comments. First, the Court held that the description "legal matters" was insufficient. It stated that "the clear legislative purpose informing section 239 is to maximize the transparency of municipal governance so far as that is possible in the circumstances…. The resolution to go into closed session should provide a general description of the issue to be discussed in a way that maximizes the information available to the public while not undermining the reason for excluding the public." The Court found, however, that the failure to pass the required resolutions before going in camera were "at most procedural irregularities unconnected to the real decision to pass the by-law," and on this basis, could not taint the legality of the by-law.