COVID-19 and Municipalities: Municipal Decision Making and Open Meeting Requirements in the State of Emergency

 

On March 19, 2020 the provincial government enacted Bill 187, Municipal Emergency Act, 2020 in reaction to the COVID-19 pandemic. Bill 187 amends the Municipal Act, 2001 and the City of Toronto Act, 2006 to permit municipal procedural by-laws (during a period of declared emergency under the Emergency Management and Civil Protection Act) to:

• allow members of municipal councils, local boards and committees to participate electronically in closed meetings (previously they could only do so in open meetings);
• allow members of municipal councils, local boards and committees who participate electronically in meetings to be counted toward quorum requirements (previously members needed to be physically present to count toward quorum); and
• allow members of municipal councils, local boards and committees to participate electronically in a special meeting called to amend a procedural by-law to reflect these changes.

However, there have been no changes to the open meeting requirements under section 239 of the Municipal Act. Therefore, while the Bill 187 amendments address the ability of councils to meet quorum requirements by allowing council members to appear remotely, it provides little direction with respect to how municipalities are expected to make decisions during the COVID-19 crisis while also fulfilling their legislative obligation to hold open meetings and facilitate public participation.

Ontario municipalities are left to grapple with this unprecedented situation and are taking varied approaches to the issue. While Council members may participate and vote electronically, municipalities must still give meaningful content to the open meeting requirements of the Municipal Act, 2001 and City of Toronto Act, 2006 – that is, if they have council meetings at all.

For instance, the City of Toronto seems to be dispensing with council meetings. OnMarch 23, 2020 Toronto Mayor John Tory declared a state of emergency under section 4 of the Emergency Management and Civil Protection Act, which reads:

The head of council of a municipality may declare that an emergency exists in the municipality or in any part thereof and may take such action and make such orders as he or she considers necessary and are not contrary to law to implement the emergency plan of the municipality and to protect property and the health, safety and welfare of the inhabitants of the emergency area. 

During the state of emergency, the Mayor has cancelled all council meetings. Until council reconvenes (anticipated for April 3, 2020), the emergency declaration gives Mayor Tory the ability to make certain decisions that would normally require city council approval. This extensive authority of the Mayor is authorized during a state of emergency under the City of Toronto’s Emergency Management Plan and is set out in Article 6, Chapter 59 of the Toronto Municipal Code.

The City of Mississauga Mayor Bonnie Crombie also declared a state of emergency; but has taken a different approach in accordance with that municipality’s Emergency Response Plan. While council meetings continue to be held, the City has barred members of the public from attending Council Chambers. However, the open meetings can be watched online and comments regarding agenda matters can be submitted via email.

Regardless of the approach taken, municipal decision making during the COVID-19 state of emergency will need to be executed in manner that respects the limits of municipal authority (including what authority can be delegated to a mayor or staff and what authority cannot be), meets open meeting requirements (where open meetings are held) in accordance with the council approved emergency plans, and maximizes transparency and accountability in a manner consistent with the legislative intention of the Municipal Act.

We will continue to provide analysis and updates of the many changes impacting municipalities in the wake of the COVID-19 pandemic. You can find our other articles here: https://www.omh.ca/articles.html

The foregoing should not be considered to be legal advice and should not be relied upon as such. Please consult a lawyer to get advice and an opinion on your unique circumstances.