City of Toronto Act -- research working notes (long)

Note: This summary of the City of Toronto Act was done by CELOS researchers primarily to understand the legal framework of how and by whom the City is to be governed.

In particular, we wanted to answer two central questions:

1) What are the governing powers and responsibilities with respect to parks and public common spaces?

2) Who may (or must) and may not exercise these powers?

The researcher is not a lawyer. Her notes and questions are contained in italicized font in square brackets.

The review did not include the parts of the Act which deal with taxation (Part XI - Traditional Municipal Taxes, Part XII - Limits on Traditional Municipal Taxes, Part XIII - Collection of Traditional Municipal Taxes, Part XIV - Sale of Land for Tax Arrears (Real Property Taxes), nor the following: Part XVII - Other City Bodies (e.g. TTC, police services board, board of health committees, the zoo, etc), Part XVIII - Transitions, or Part XIX - Miscellaneous Matters.

Please note: This summary reflects the researcher's understandings of the different provisions of the Act. As such, it may be a first step in the research on the Act.

The second step in any research is to read the Act itself: City of Toronto Act, 2006, Statutes of Ontario, Chapter 11, Schedule A. There is an updated electronic version.

There is a history of the legislation, including amendments made to it, the date different provisions were proclaimed to be in force, etc.

Part I – Interpretation

Preamble notes: [the Preamble sets the stage for what the legislation is all about]

- 1st emphasis is on Toronto as an "economic engine" and it notes the City’s key role in:

- creating and supporting economic prosperity and

-a high quality of life for people of Ontario

- the lawmakers recognize that the success of the City requires the active participation of governments working together in a partnership based on respect, consultation and co-operation

[these principles are repeated in the Interpretation - section 1; interestingly, there is no corresponding mention of the importance of CITIZENS’ participation in either place]

- the lawmakers recognize the City as a government "capable of exercising its powers in a responsible and accountable fashion"

[to the extent that this is not citizens’ experience of the City, it would be interesting grounds for appeal to the legislature during the review of this legislation 2 years after it came into force on January 1, 2009. What was the experience/evidence upon which this capability was asserted?]

s. 1. Governing principles of the Act:

- the City exists for the purpose of providing good government

- Council is responsible and accountable

s. 2. Purposes of this Act

- to create a broad framework of powers to allow the City to provide good government including doing the following:

- determine what is in the public interest [there is no mention of how this is done, or any explicit mention of the "public’s" role in defining its interest]

- respond to the needs of the City [as defined by whom? By what process?]

- determine the appropriate structure for governing [this could be interesting for CELOS to define how citizens can take their central role in directing the City as to the needs/desires of citizens re: public space and parks]

- ensure that the City is accountable to the public, and decision-making is transparent [this is a central basis upon which to base any appeal to the legislature]

- determine appropriate mechanisms for delivering municipal services [CELOS has a key role here to help the City fulfill its legislative mandate by providing a model for how services can work for the people for whom they are provided]

- to determine appropriate spending levels & taxation [again, CELOS has a key role here to help the City determine what is appropriate in public space]

- fiscal tools

s. 3. Definitions

"record" – information, however stored…..

• "system" – one or more programs or facilities of a person used to provide services and things to the person…. and includes administration

s. 4. Special Acts [I’m not clear what these are]

"special Act" – an Act which relates to the City in particular [any relevance to CELOS? ]

- The City may act to override a special Act re: the following powers:

- changing the City's name

- establishing, changing, dissolving wards

- changing the composition of City council

- dissolving or changing local boards [this appears, at first, to give very, very far-reaching power to city councilors to make fundamental changes to the way councillors are elected *e.g. how many councilors, changes to ward boundaries) However, see s. which establishes which decisions can be made by Council and the procedure to be followed.]

s. 5. Review of the Act

This Act will be reviewed after 2 years [Jan. 1/09] and every 5 years onward. [What is the process for this? Is this a common provision in legislation? What is the context/background of this?]

Part II. General Powers

s. 6. the City’s powers are to be interpreted broadly. [repeated intent of legislation throughout the Act is to err on the side of conferring very broad powers on the City]

s. 7. the City has the powers of a natural person [standard clause that means that the City is the corporate body referred to as the City of Toronto]

s. 8. (1) the City has broad powers to "provide any service or thing that the City considers necessary or desirable for the public".

s. 8. (2) sets out the City’s general by-law making powers:

1. governance structure of the City and its local boards

2. accountability and transparency of the City and its operations

3. financial management of the City

4. public assets

5. economic, social and environmental well-being of the City

6. health, safety and well-being

7. services and things the City is authorized to provide

8. protection of persons and property, including consumer protection [consumer protection is typically the responsibility of the province]

9. animals

10. structures, including fences and signs

11. business licensing

8. (3) Scope of by-law making powers

a) regulate or prohibit

b) require persons to do things respecting the matter

c) provide for a system of licences " " "

s. 9. the City can expropriate land as per provincial legislation

s. 10. By-laws can be general or specific in their application and may differentiate in any way and on any basis the City deems appropriate [What is the source/rationale of this section? Does this relate to caselaw, or human rights matters? For CELOS purposes, it is certainly an argument which supports the current practice that different facilities in the City are and should be treated differently.]

s. 11. Where there is any conflict with provincial or federal legislation, orders, licenses, etc. these prevail over municipal by-law.

s. 11 (2) a by-law is without effect where there is a conflict between a by-law and a provincial or federal law, regulation or where the by-law frustrates the purpose of the Act, regulation or instrument. [this could be of key importance to CELOS if there are laws enacted for purposes that contradict City by-laws]

General Restrictions

s. 12. The City must follow all necessary procedural requirements, including "conditions, approvals and appeals" that apply to the power and any limits on the power contained in the specific provision. [What are these requirements? We need to be attuned to any particular processes required when by-laws are passed under any specific sections, other than ss. 7 or 8]

s. 12.(3) Nothing invalidates a by-law which was passed in accordance with the procedural requirements in force at the time it was passed.

s. 12 (4) The procedural requirements must be followed regardless of the wording of ss. 7 &8.

*s. 12 (5) The procedural requirements don’t apply to by-laws passed under ss. 7 or 8 re:

- fences, signs

- requiring people to shovel snow, ice

- require people to clear their land of debris

- require people to cut lawn and weeds,

- prescribing standards re: vacant buildings

- authorizing front yard parking

• - providing for any project to provide housing or accommodation in the City, including any public space or recreational, institutional, commercial or industrial facilities or buildings that, in the opinion of the City, may be reasonably necessary for that purpose

- other matters prescribed by Minister of Municipal Affairs and Housing [I understand some of these circumstances as they are matters which can be seen as necessary to do promptly, but the bold part above seems very broad].

s. 13 Sets out restrictions on the ss. 7 & 8 by-law making powers - these sections cannot be used for the following corporate and financial matters :

- imposing taxes

- making grants or loans

- becoming bankrupt

s. 14 Restriction on the City’s right to confer monopolies – "the exclusive right to carry on any business, trade or occupation" unless the City is specifically authorized to do so under this or any other Act. [Could this section apply to argue against the type of kitchen licensing issued at Christie Pits? To do: look in Act for provisions re: contracts to carry on businesses]

Delegation of Powers and Duties

General Power to Delegate

*s. 20 broad power of delegation under the Act except for enumerated restrictions in section.

s. 20 (2) Scope of power – rules which apply to a by-law delegating any of City’s powers or duties:

- delegation can be revoked at any time (unless the power of revocation is specifically limited)

- delegation can’t go beyond the term of Council

- delegation may be shared by both the City and the person to whom the power is delegated

- regardless of delegation, the City is always joint delagatee [e.g. liable for the way the delegated powers are carried out]

- Council can place any conditions or limits it wishes on delegations

- all delegated power must be exercised in the same way that the original, non-delegated power is exercised, including all conditions, procedural requirements, etc.

**s. 20 (3) Conditions and limits Council places on delegation may include:

- a requirement that the delegate act by by-law, resolution or otherwise despite s. 132 (2) [where Council wishes, it can permit a delgate to act in ways other than by passing a by-law]

- procedures delegate must follow

- accountability of the delegate and transparency of the delegate’s actions

s. 21 Restriction of delegation of legislative and quasi-judicial powers [this section sets out the conditions under which Council can delegate its power to make laws or make decisions made in a way like a court does]

- these powers can be delegated only under specific Acts named in the regulations, a private Act re: the city [example?] or the Planning Act and, in these cases, only to:

a) one or more city councilors or council committee, or

b) a body with at least two councillors, of whom at least 50 percent are:

- councillors

- individuals appointed by council, or

- a combination of the two above or

c) city employee, officer or agent [check regulations to see in what kinds of cases city employees, etc. take on legislative or quasi-judicial functions?]

'''s. 21 (3) - there can be no delegation to a corporation created by the city''' (s. 148)

'''s. 21 (4) Council can’t delegate legislative power to an employee, officer or agent''' unless, in Council’s opinion, the power is minor in nature. "Minor" is determined by such factors as the number of people affected, the size of geographic area, and the time period affected by the exercise of power.

'''s. 21 (5) gives examples of "minor powers"'''

- temporary closure of highway

- power to issue and impose conditions on a licence

- powers of council described in old Municipal Act as of Dec. 31, 2002 [look these up – s. 210, paras 107-110; s. 308, para 3; ss. 321(2), clauses 312(4)(a) 7 (b)] [Very important legislative intent that would argue against the helmet policy or any other policy which has such broad effect – key CELOS argument ][what is the legal method of delegating? Only by by-law?]

Regulations

s. 25 - Provincial Cabinet can make temporary regulations imposing limits and conditions on City's broad by-law making power (ss. 7-8) or prevent the City from using its powers in clearly defined circumstances. [this is an interesting section which sets out clearly that provincial powers - in one case, Cabinet, in the other, the Minister - can make regulations to check the City's powers to make by-laws (ss. 7 & 8) and delegate its powers (s. 22) e.g. if a member of the public wanted an 18 month moratorium re: any City by-law re: public spaces, amenities and parks. This could be a sought temporarily, pending the legislative review]

s.25 (2) - this power is viewed merely as a temporary measure, and the regulation would be automatically revoked in 18 months

s.25 (3) Cabinet cannot replace the expired regulation with one of similar effect [presumably, this is a section designed to impose a check on the City's use of its powers, in between times when the Act is reviewed]

s. 25 (4) This type of regulation would render a city by-law inoperative. [how long does it take to get regulations passed? e.g. is this section in any way viable or merely to be invoked for "emergency" situations?]

s. 28 The Minister of Muncipal Affairs can make regulations restricting or imposing conditions on how the city delegates its powers and duties. [Public might wish to propose a possible draft of a provision to specifically preclude policy-making initiated by staff.]

Part III - General Powers : Limits and Additions

Towing cars from parks

s. 74.1 - gives Parks the authority to tow vehicles in parks if a by-law has been passed to forbid parking, standing, placing of vehicle in park AND PROVIDED signs warning of removal have been erected

- this can be done by police, by-law officer or anyone authorized under the by-law

s. 77. There must be a by-law in place to prohibit parking in order to tow/impound vehicles.

s. 81 this is the City's authority to impose fines for parking violations must be a regulation passed under s. 118 (general regulation making section of Part III) in order to impose a fine

Licences

s. 85 Definition of "business" for the purpose of the City's licensing powers [The City appears to have very wide discretion regarding the types of public activities upon which it will impose licencing requirments . The definition of a "business" includes: exhibitions, concerts, festivals and other organized public amusements held for profit or otherwise]

s. 86 authorizes the City to exercise a wide range of powers re: licencing business and re: prohibiting businesses from carrying on without a licence, including the following:

- treating people/applicants involved in the same activity differently [this is one of many instances in the Act which authorizes the City to take different approaches to same/similar situations , e.g. special conditions on one business to which other businesses in the same class are not subject]

- imposing new conditions at any time throughout the duration of licence

- imposing fines for failure to comply with licence conditions [the Act sets out certain cases where an "administrative penalty" may be imposed. Are "administrative penalties" and fines exactly the same? Also, look at administrative law re: these definitions and "offence".]

s. 86 (2) the City may suspend licences without a hearing on the grounds of an immediate danger to the health or safety of any person or to any property subject to the following:

- providing the licensee with reasons for the suspension and offering the licensee an opportunity to respond

- the suspension can be for a maximum of 14 days [this section could be used as a model to prevent the shutting down of public facilities, as in the case of the rink closure in December 2003, also the types of rink closures when shinny players or children pleasure-skating decline to wear a helmet. Interestingly, this section is much more reasonable than the across -the- board ability of the Occupational Health and Safety Act to shut down workplaces]

s. 85 (3) Regardless of (2), the City can suspend a license without a hearing for not more than 28 days for the following reasons:

- to hold a special event

- property construction, repair, or maintenance

- to install, maintain, or repair a public utility or service

- for pedestrian, vehicular or public safety or public health [this is a strange section; s. 86 (2) provides a very narrow ambit for suspending licences and requires City to proceed very carefully, allowing a party involved to be heard as to health and safety or property concerns. This careful process contrasts sharply to the seemingly unbounded powers of the City under the provincial Occupational Health and Safety Act. However, s. 86 (3) erodes,even almost negates, this more careful approach by allowing suspension of licence for long period on almost any grounds with no opportunity for licensee to be heard]

*s. 86 (4) Some of the City's licencing powers can be used at the City's discretion, either on the grounds of the discretion as are set out in by-laws or "upon the grounds that the conduct of any person, ... affords reasonable cause to believe that the person will not carry on... or engage in the business in accordance with the law or with honesty and integrity [this is a most surprising clause - is it truly legal to legislate re: honesty and integrity? in what types of situaitons might this be legitimate?]

s. 85 (5) "This section applies with necessary modifications to a system of licences with respect to any activity, matter or thing as if it were a system of licences with respect to a business". [this is a curious section - what does it mean? Could it be used to shut down programs or activities at Dufferin Grove Park or other public spaces in the City? see broad definition of "business" above.]

• - the City has broad powers of discretion re: its licencing powers, even extending to:

s. 87 In the event of a conflict with another Act re: licencing powers, the section that is "less restrictive of the City's power prevails".

Health, Safety and Well-Being

s. 98 outlines the City's power to prohibit/regulate smoking in public places and workplaces. [check by-law for definition of "public place". Is it applicable to CELOS/citizen definition?]

s. 98 (4) the City may require the owner/occupier of an establishment to enforce the by-law and ensure compliance. [interesting precedent,e.g. staff can be instructed as part of job duties to ensure compliance, as compared with general scheme of by-law enforcement officers - think about this].

Trees

s.104 - If the City has passed a by-law re: trees, then this section comes into play, and lists situations when the by-law will not apply.

s. 104(2) -applies if the City passes a tree by-law prohibiting or regulating the destruction or injuring of trees in woodlands (defined as woodlands of one hectare or more -

s. 104(4), the City "shall have regard to good forestry practices as defined in the Forestry Act. [has the city passed a by-law? if so, what is the content? presumably, if so, this might be grounds upon which to proceed against the City for its own breach of the by-law, e.g. planting without regard to need to water, etc.]

s. 104 (3) - lists the things that the by-law does not refer to or regulate which include:

- activities that destroy/injure trees done under the authority of other Acts, e.g. licenses under Crown Forest Sustainability Act, 1994, Surveyors Act, Planning Act, Electricty Act, for pit/quarry, under Electricity Act, and for site plans, or due to a condition of a permit.

General Powers: Limits and Additions

s. 118 Provincial Cabinet may make regulations re: parking penalties including:

a) granting the City the power to make people pay administrative penalties

b) imposing limits/conditions on the City's powers re: these penalties

c) providing that non-payment of fines can result in refusal to issue or validate vehicle permits

s. 118 (2) In the event of a conflict with regulations made under another Act, these regs apply.

s. 122 - the Minister of Municipal Affairs and Housing may make regulations prescribing conditions for zoning by-laws (s. 113 (2))

Part IV- The City and its Governance

[this part is of pivotal importance to CELOS and people who live in the City. It clearly defines who is responsible for what and might provide the legal basis upon which to challenge the types of legislating re: city facilities that is currently being carried out by non-elected officials.]

Interpretation

s.124 "proposal for minor restructuring" - the Minister determines what is minor "restructuring"- annexing part of the City to another municipality or vice versa

City Council

s. 131 Role of Council

- to represent the public, and consider the well-being and interests of the City

- to develop and evaluate policies and programs of the City

- to determine the services the City provides

- to ensure that administrative policies, practices and procedures and controllership policies, practices and procedures are in place to implement Council's decisions

[staff only carry out the decisions of elected officials, they don't make the decisions. See the mirror provision below in s. 136 which deal with the role of officers and employees]

- to ensure accountability and transparency of City operations, including activities of senior management

- maintain financial integrity

- general section catch all

s. 132 The City's powers are exercised by Council.

s. 132 (2) A power of the City shall be exercised by by-law unless the City is specifically authorized to do otherwise. [as I understand this section, the only legitimate way to affect citizens' rights, e.g. helmet or stroller policy at rinks is by by-law. I haven't encountered any section in the Act which specifically permits proceeding in a different way.] [check that this section/subsection is correct]

s. 133 Mayor's role

- chief executive officer

- leadership, preside over meetings so that business is carried out effectively and efficiently

s. 133 (2) provide information and make recommendations

- to ensure that administrative policies, practices and procedures and controllership policies, practices and procedures are in place to implement Council's decisions

- to ensure accountability and transparency of City operations, including activities of senior management (s. 131 (d)(e) above) above all else, it is the Mayor's job to make sure that staff is carrying out Council's decisions, or making recommendations to Council, not making the decisions.]

s. 133 Mayor's role as chief executive officer - the mayor shall:

- uphold and promote the city's purposes

- promote public involvement in the City's activities [****transfer to notes re; legislation - it is the Mayor's job to make sure this happens]

s. 135 Council can change the composition of City Council; there are certain requirements re: composition of council, and the changes can't take effect until after an election.

s. 136 Role of officers and employees

- to implement Council's decisions and establish administrative policies and procedures to carry out those decisions

- undertake research and provide advice to Council on the City's policies and programs

- other duties required under the Act

's. 137 City Clerk

- his/her job is to record all resolutions, decisions and other proceedings of Council

- must record vote, if requested by Councillor

- keep copies of all by-laws and minutes of council proceedings

- other duties

- the clerk and deputy clerk need not be city employees [is this a possible "in" for people outside the City to bring in a public perspective on the types of information citizens want kept, access to this information,etc.?]

s. 138 City Treasurer

s. 138 (d) must "maintain[ing] accurate records and accounts of the financial affairs of the City [presumably accurate also includes accessible and transparent records, otherwise how else can citizens ascertain that they are accurate? Is the treasurer a possible contact for citizens who wish to access accurate records when they are not available from Parks, etc.? As part of a grant proposal, should we put together precedents re: record keeping, financial information re: public amenities within neighbourhoods, to be available for citizens who wish to advocate this and offer precedents to prospective candidates for municipal office?]

s.138 (e) must provide Council "with such information with respect to the financial affairs of the City as it requires or requests".

- need not be city employee

s. 139 Appointing city auditor

- reports directly to Council

s.140 Council may appoint a chief administrative officer responsible for the "general control and management" of city affairs

City Boards

Council's power to appoint City boards

s. 143 (1) - "Council may give a city board the control and management of such municipal services and activities as the City considers appropriate and shall do so by delegating the powers and duties of the City to the board in accordance with this Act. [very interesting section; this would permit the City to delegate the running of all of the city outdoor rinks to CELOS].

s. 143 (3) Council can delegate its powers or responsibilities to City boards always subject to procedural requirements that Council is bound to follow, and any conditions or limits on the delegation.

- the City can form and dissolve City Boards (except for specified boards such as library, children services, police boards, etc.)

s. 148 Council can establish corporations which act within prescribed parameters. [e.g. municipal housing corporations, what are other examples?]

*s. 152 Regulations

- the Mayor may hold a powerful position through regulations requiring him/her to:[what regs have been made under this section?]

- appoint chairs and vice-chairs of specified committees of council and local boards

- appoint deputy heads

- Chief Administrative Officer [in some cases, CELOS might wish to see if regulations have been passed re: the terms of delegation of duties to specified committees]

Part V Accountability and Transparency

s. 158 - the Integrity Commissioner's job is to apply the code of conduct re: Councillors and members of City boards - ethics

- reports to Council

- need not be employee

- can delegate powers in writing

s. 160 - the Commissioner can hold an inquiry by request of another councillor or member of the public

s. 165 - establishes a City registry of people who lobby people who hold public office

s. 167 Council can forbid people to work on a contingency basis (e.g. where the lobbyist gets paid all or partly based on the degree of success of his/her lobbying efforts).

**s. 170 Ombud -the City must appoint an Ombud [Council has allocated a budget for a City ombud, but no one has yet been appointed; apparently the city is "head-hunting" for a suitable candidate.]

- not required to be city employee

- reports to City council

s. 171 - Ombud's job is to "investigate any decision or recommendation made or any act done or omitted in the course of the administration of the City, its local boards and city controlled corporations".

- Council can define which of its own powers that the Ombud is entitled to exercise and defines the Ombud's duties.

- Ombud has overarching range of powers to investigate any decision made by the City administration even where another provision states that these decisions are not reviewable, cannot be appealed or challenged

- Ombud cannot become involved in any investigation until all of the available steps and recourse have been taken (e.g. if a decision can be appealed, it must first be appealed. If the applicant loses the appeal, at this point she can ask the Ombud to investigate the matter.) [question - I would imagine that Council defines the Ombud's powers and duties broadly and not on a case-by-case basis.]

- s.171(5) - Ombud may delegate in writing any of the Ombud's powers and duties under this Part to anyone other than a Councillor, .

s. 171 (6) - at same time, s/he can continue to exercise the same duties as those delegated (joint project)

s. 172 - all investigations are done privately

- (2) Ombud can hear from anyone s/he chooses,and make any inquiries s/he sees fit, but s/he is under no obligation to hold a hearing and there is no right or entitlement to be heard

EXCEPT where Ombud judges that there may be sufficient grounds for a person to make a report or recommendation that may adversely affect the City - in this case, the Ombud shall hear the person's position [it would seem that this section would be sure grounds for CELOS to make reps to the Ombud; this might be the opportunity to do so, with a view to taking on the joint Ombud powers re: parks and public space]

- s.172 (3) - s. 19 of Ombudsman Act determines how Ombud must exercise her powers and duties [copy this section]

s. 173 - the Ombud and all people who are acting under her instructions must keep the matter under consideration secret

s. 173 (2) - when the Ombud reports, she can disclose any information she considers necessary to provide the basis for her conclusions/recommendations

s. 173 (3) this duty of confidentiality prevails over municipal freedom of information legislation s. 173(3) [copy section]

**s. 174 the Ombud's proceedings and decisions cannot be reviewed or challenged in court or otherwise except on the grounds of a lack of jurisdiction [the Ombud occupies a very, very powerful position as her decisions/process cannot be reviewed for lack of procedural fairness, etc]

s. 175 - Ombud can't be called into court on any matters s/he has heard, nor can anyone else acting under her instructions.

*s.175 (2) - no information, documents or anything else supplied during an Ombud's investigation can be revealed in court - including a person instructed to provide information could not be compelled to give evidence in court on the same matter? [clearly, the Legislature is giving clear notice that the Ombud's decisions are not to be scrutinized by the courts. This avoids undermining the Ombud's powers and provides,at least in theory, for a much more flexible and potentially thorough, far-reaching approach to a problem.]

s. 176 - states that the Ombud route is in addition to any other legal rights which exist. [i don't understand the interplay between an ombud's process and court process, since presumably most of the information uncovered in an enquiry would be considered privileged and couldn't be produced in court. Read this over with jutta and jane and try to figure this out]

s. 177 Auditor General -not required to be city employee [I didn't think s/he could be an employee?]

s.178 - job is to help city council and city administrators be accountable for the quality of stewardship over public funds and for achieving value for money in city operations

s. (5) can delegate any of his/her functions to another [not likely, but again, this would be good CELOS role for small piece, e.g. outdoor rinks]

s. 183 Minister may make regs prescribing local boards

Part VI - Practices and Procedures

s. 184 - first council meeting after both election and by-election must be held no later than 31 days after term commences

s. 188 - need quorum of majority of councillors

s. 189 - "committee" - is any advisory or other sub-committee or similar entity of which at least half of members are also members of council or local boards (except police services or public library board)

- "meeting" - any regular, special or other meeting of council

**s. 189 (2) - city and each local board has to pass procedure by-law re: calling, place and way meetings proceed

(2.1)- must provide for public notice of meetings [get copy of this - find out what is requried re: notice and how this compares with what is happening at present]

(4) councillors can participate "electronically"as provided in the by-law, but this person can't be counted towards quorum

Meetings:

s. 190 - all meetings are public except if subject being considered is:

(2) (a) the security of the property of the City or local board [what does this cover?]

(b) personal matters about an identifiable individual, including city or local board employee

(c) proposed or pending acquistion or disposition of land by City or local board

(d) labour relations or employee negotiations [this could be used very broadly]

(e) litigation or potential litigation , including matters before administrative tribunals, affecting the City or local board;

(f) advice subject to solicitor-client privilege, including "communications necessary for that purpose"

(g) matter of which council, board or committee or other body "may hold a closed meeting under another Act." [Council discretionary power to invoke virtually unlimited grounds for excluding public from council meetings; how often does this happen, in practice? Has it ever been in issue?]

s. 190 (3) meeting must be closed if required under Municipal Freedom of Information Act

s. 190 (3.1) meeting may also be closed if both apply: it is for educating/training council, local board or committee members and "no member discusses or otherwise deals with any matter in a way that materially advances the business or decision-making" of the council, board or committee [this section is very limited by the second criteria, but council still has virtually unlimited grounds upon which to exclude public]

s. 190 (4) - sets process that must be followed if any meeting or part of meeting is to be closed:

- must be resolution stating that:

- meeting is closed,

- general nature of matter to be considered at closed meeting

- if closed re: educational purposes, that it is being closed under s. 190 (3.1)

s. 190 (5) "meeting shall not be closed" during a vote

s. 190 (6) unless for one of the very broad reasons that Council can close it above and "for giving instructions to officers, employees or City agents [these are very, very broad grounds on which to exclude people from a vote; in this case, people must access record through FOI process. s. 190 (10) ]

s. 190 (7) the section re: open meetings does not apply to library or police services board [this is true of many places in the Act - look at other legislation or procedures re: these situations]

s. 190 (8)(9) The city clerk must record all "resolutions, decisions,and other proceedings" whether it is opened or closed

s. 190 (10) [look up s. 42(3)cl. 6 (1)(b) - FOI]

s.190.1 - A person can request an investigation by Ombud or investigator that council may appoint re:

- whether Council has improperly closed a meeting or failed to comply with the correct procedures re: closing a meeting [this would not likely be worth the trouble given Council's discretion and very broad grounds to close meetings]

- rest of section details that Council will have powers/duties assigned by council

- the nature of the powers given to an investigator must reflect his/her independence, impartiality, the confidentiality of matter, and the credibility of her process.

- some powers (for this matter) similar to those of ombud

- s/he reports with opinion, reasons, recommendations

- these reports must be made public

s. 191 Calling Meetings

- subject to procedure by-law, Mayor may call special meeting or

- upon petition of majority of councillors - for purpose and at time mentioned

s. 192 - Mayor's duty to preside at council meetings or other designate

- mayor can expel any person for improper conduct

s. 194 - each councillor has one vote

- no secret ballots except to vote for mayor's designate to preside at meetings

-tie vote = lost vote

- recorded vote can be called for at any tie immediately before or after taking vote

- failure to lodge recorded vote deemed to be a negative vote

s. 195 By-laws

-must be published in both French and English

- also official plan

- council can conduct proceedings in English or both English and French

s. 196 Municipal Code

- if city passes a comprehensive general by-law which consolidates and includes earlier by-laws, the provisions are deemed to have come into force the day the original by-law was passed

- seems to state that if original by-law required any condition or approval, this had to be satisfied; if so, it is legitimate in general by-law

'''s. 197 every city by-law must be sealed and signed by clerk and mayor''' or designate who attended the meeting [clearly indicates significance of council's by-law making powers]

s.198 by-laws upon application - some by-laws must be signed by a required number of electors [When does this happen and why?]

Records

s.199 - Subject to MFIPPA, any person may, inspect records, including:

- by-laws and resolutions

- minutes and proceedings

- records considered at a meeting, except those considered during closed part of a meeting

- records of city council [what does this refer to?]

- statements of council members' remuneration/expenses

- can get certified copies for a fee

s.200 - records are to be retained/preserved in "secure and accessible manner"

s.200 (7) - "In this section, the requirement to retain and preserve records in an accessible manner means that records can be retrieved within a reasonable time and that the records are in a format that allows the content of the records to be readily ascertained by a person inspecting the records. "

s. 201 - city can't destroy records except copies (where original exists) except as approved by city auditor

Policies

s. 212 - City must make policies re:

- sale/other disposition of land

- hiring of employees

- procurement of goods/services

- when and how notice is given to public

- public accountability/transparency

-protection of property/civil rights, that people are fairly treated

- delegation of its powers/duties

- financing of capital works, including the limits on annual costs associated with financing

Quashing by-laws

s.213 - limits to scope of judicial review of by-laws- cannot apply to quash by-law on the basis of unreasonableness or supposed unreasonableness if it was made in good faith [What is the context/case law behind this provision? Would it stand up in court? Surely it would be open to charter challenge depending upon the subject matter]

s. 214 - this leaves illegality as the only basis upon which the courts can review the content of a by-law

s. 214 (2) can hold inquiry for alleged contravention of s. 90(3) of Municipal Elections Act [What is this?]

s. 214 (3) court can order a stay on application of a by-law pending the court hearing and rendering its decision [This means that the by-law would have no effect during this time]

s. 214 (4) can apply to quash a by-law, order or resolution on basis of illegality only within a year of time it is passed [What is legal definition of order, resolution? see council procedures - this could be a problem for challenging helmet policy if, in fact, it has been legally approved in one of these ways] [this section should be challenged by CELOS during review of legislation - what about "discovery of harm" principle in tort law as analogy- if by-law is illegal, but has not been known to people, or people have not yet been affected by it, a bar to challenging the illegality is foolish and deeply at odds to the principle of democracy]

s. 215 Judicial investigation

City can request, by resolution, for Judge of superior court to investigate, inquiry into broad range of matters, including:

- supposed breach of trust or misconduct of city councillor, employees, or someone who has contract with city

- any matter connected with "good government of the city'." etc. [presumably, this section would be used for the **** inquiry - would mostly be used to look at past events, councillors are most unlikely to wish to inquire into mishandling for which they are currently responsible]

- rest of section details judge's powers for inquiry

s.216 Restricted Acts After Nomination Day

- creates a freeze on Council's actions just before elections; council cannot:

- appoint/fire any city officer

- hire/fire any city employee

- dispose of any real or personal property greater than $50,000 at time of disposal

- spend or incur liability greater than $50,000.

except where disposition or liability was already approved by most recent budget before nomination day or emergency

- people with delegated power may still exercise these powers

s. 217 Insurance

"designated employee" is any salaried officer, or person employed by city or local board

- defines other terms

s. 218 Insurance

"Despite the Insurance Act, the city may be or act as an insurer" re: [read act, to find out what "may be or act as" means - does it impose a duty, or is it merely permissive?]

- [sounds like the city may but is not obliged to insure itself and employees and councillors for liability, court awards and settlements]

City can enter into reciprocal agreements with other municipalities [as per Part XIII of the Insurance Act] [Does the city in fact do this?]

Any regulations enacted under section 256 are key to what can be done with surplus funds, etc.

[sounds like city can perhaps join with other municipalities to act as joint insurers - if any insurance questions arises, we'd need to very carefully look at these sections]

- City may also get insurance (and pay for all or some of the premiums] for local boards

s. 222 Remuneration and Expenses

- allows city to pay for all or part of pay/expenses of local boards

- can only pay city councillors' or employees' actual expenses (or reasonable estimate of expenses) incurred in the course of duty

- can only reimburse direct, not incidental expenses

s. 223 - treasurer must provide a statement of all of the councillors' and designated appointees' expenses by March 31 (also board members) [This section refers to situations in which councillors are acting in their capacity as officers or employees of the city - what is the difference?]

s. 223(2) -the statement shall identify the by-law under which the remuneration or expenses were authorized to be paid

s. 223 (4) - states clearly that these statements are public records and that this overrides any provision of MFIPA [CELOS could lobby for these kind of sections in an amended city of Toronto act to require that every action which has an impact on city residents and public spaces and park and public amenities identify the by-law under which it was authorized - need a section of the act "public space and public amenities", which sets a code of principle and processes for all acts and decisions which affect owners of city facilities]

- foi - need a broad provision with an inclusive list of all of the documents that are public documents for the purpose of MFIPA - in our experience, the daily spending/hiring/"operational" decisions of the city have much farther reaching effects on how people can enjoy the amenities they have paid to have built and pay to run, and how they recreate in public spaces than the spending of 44? councillors

s. 224 Review or Appeal re Delegated Authority

- council has power to provide for a review or appeal of decisions that have been delegated (even if properly delegated in first place)

- council can decide whom to appoint to do the review, person or body's powers, can set procedures, can "provide for rules for authorizing" the review person to "determine when decisions subject to review or appeal come into force, including a retroactive date not earlier than the day on which the by-law was passed".

- council cannot use this power if certain decisions are listed in regs under s. 226

- person who made decision can reconsider his/her own decision [e.g. if issue is raised, this person can reconsider]

Regulations re: policies

s. 225 Minister of Municipal Affairs and Housing may make regulations prescribing "bodies for the purpose of the definition of "local board" (restricted definition in s. 212 (3))

s. 226 Regulations re: review or appeal

Minister of Municipal Affairs and Housing may make regulations prescribing decisions involving review or appeal of delegated authority

Part VII - Financial Administration

s. 228 City must prepare and adopt a budget a year in advance with estimates of money needed, including:

- money to pay all debts that come due

- amounts required for sinking funds or retirement funds

- amounts required for any board, commission, or other body

s.228 (2) in year following election, budgets are adopted (rather than year before in non-election years)

s. 228 (3) budget must have: estimated revenues, and estimated expenditures

s. 228 (4) City must:

a) treat operating surpluses of any previous year as available revenue for following year

b) provide for any operating deficit of any previous year and for the cost of the collection of taxes and any abatement or discount of taxes

c) provide for taxes and other revenues that in the treasurer's opinion are uncollectable

d) provide for taxes and other revenues estimated will not be collected

e) may provide for such reserves as the City considers necessary

s. 228 (5) City can pass by-law re: time and form of budget reporting by boards, commission, and other bodies [Does this by-law exist? If so, does the city abide by the same requirements it exacts of other bodies?]

s. 229 - City can prepare multi-year budgets for 2-5 years Council can only make/approve budgets for years they hold power

s. 229 (6) multi-year budgets can be revoked/amended as required City is obligated by law to levy taxes each year

Returns and Financial Statements

s. 230 The City must file an annual return with its financial statement to the Minister of Municipal Affairs and Housing each year [How, if at all, does this information vary from that presented in city's budget materials? Is this an additional source of information?]

s. 231 - City's annual financial statements must be "in accordance with generally accepted accounting principles for local governments as recommended, from time to time, by the Public Sector Accounting Board of the Canadian Institute of Chartered Accountants [Get a copy - are these principles appropriate for public accounting and transparency? What was the process by which they were drafted? Who, from the public, had a say? Is this a possible "in" for celos - to make recomendations re: THIS?

Publication of financial statements, etc.

s. 232 (1) 60 days after it receives the City's audited financial statements, city treasurer must:

a) publish in newspaper:

i) copy of audited financial statements, notes to the financial statements, the auditor's report and the tax rate information

ii) notice that all of this information will be made available at no cost to any taxpayer or city resident, upon request

s. 232 (2) re-iterates that copy must be provided at no cost

Auditing of financial statements, etc.

s. 233 - city auditor audits the accounts and transactions of the city and local boards and expresses its opinion on the financial statements

s. 233 (2) - city auditor's reports are public records and may be inspected at clerk's office

s.233 (3) person may make copies by paying fee established by city clerk which shall not exceed the lowest rate the clerk charges for copies of other records

s. 234 "where the City audits a local board" [clearly, this is not a requirement - under what conditions/circumstances is an audit conducted?] City pays for cost of city auditor; this cost may be charged as debt to boards

Auditor's right of entry

s. 235 - city auditor has right of access at all reasonable hours to all City/local board records [auditor has very broad powers]

s. 235 (2) the auditor may require information s/he considers necessary to carry out his/her duties from current and former council members and boards, from current and former officers and employees and boards

s. 234 (3) can require any person to give evidence under oath and has the powers of a commission under Part II of the Public Inquiries Act [auditor can take evidence in same way as in the context of a public inquiry]

s. 234 (4) can attend any council (or local board) meetings and is entitled to:

a) receive all notices sent to councillors/local board members

b) make representations on any matter that concerns him/her as auditor

General

Default in providing information

s.236 Minister of Finance may retain any money payable to the City if the City or an officer of the City has not provided the Minister of Municipal Affairs and Housing with any information that the City is required to proved under Part VII. [What is city required to provide? Anything beyond s. 230 financial returns?]

Information re municipal operations

s. 237 (1) extended definition of a "local board" as "any body performing a public function: as designated by the Minister of Municipal Affairs and Housing

s. 237 (2) The City and a local board... shall provide the Minister of Municipal Affairs and Housing with information designated by the Minister which, in the Minister's opinion, relate to efficiency and effectiveness of the City's of local board's operations, at the times and in the manner and form designated by the Minister. [What about a Celos contract, or grant application re: these sections of the Act? bringing a public perspective to the Act, which is to be guiding principles for Councillors to interpret and govern according to "public interest"]

s. 237 (3) The city and a local board shall publish all or such portion of the information as may be designated by the Minister at the times designated by the Minister but in the manner and form determined by the City [so Minister decides what information must be provided, and City can publish this in a form it chooses - "publish" presumably means in the Gazette? Why published in form determined by City? This seems to erode the potential strength of the section]

s. 237 (4) A designation by the Minister under this section may be general or specific in its application. [This allows for CELOS request for very specific information e.g. re: efficiency of running rinks]

Financial Assistance

s. 238 (2) Minister of Municipal Affairs and Housing may make grants and loans "and other financial assistance" to the City, a local board or a First Nation [first mention of a First Nation; what situations is this designed to cover?]

s. 240 City sets a cap on the fees its collection agency can recover for collecting city debts.

Content last modified on January 25, 2009, at 02:41 PM EST