Understanding the Municipal Act

Among the many pieces of legislation, bylaws and policies that guide and inform municipal councils in Ontario, the Municipal Act is the most important.* This 238-page, 140,000-word, 474-section document covers most of the things that govern municipal councils:

• powers,
• duties,
• highways,
• public utilities,
• waste management,
• fences and signs,
• animals,
• economic development,
• environment, licensing,
• municipal reorganization,
• municipal service boards,
• BIAs,
• boards and committees,
• integrity commissioners,
• transparency,
• open and in-camera meetings,
• financial administration,
• taxation,
• fees,
• bylaw enforcement,
• bonusing.

…and many other topics. Clearly a document of this size and scope requires more than one reading to grasp. Some areas do not arise often during a term or may not be relevant to the particular municipality. However, every municipality needs a legal adviser and a clerk familiar with the Act.

Some sections refer to other Acts rather than providing direct guidance – conflict of interest, highways and libraries, for example.

It’s a pretty dry document, and dense enough that it’s good to have a guide to condense it, as well as a book or two or three to explain some of the more obscure or subtle points.

Before anyone serves on council, or comments on issues of municipal governance, he or she really needs to understand the Act, how it currently defines and establishes governance, as well as how it relates to other legislation. Disliking or disagreeing with a decision does not mean the process has done improperly or incorrectly.

For example, here are the roles of council as the Act stipulates:

Role of council
224. It is the role of council,
(a) to represent the public and to consider the well-being and interests of the municipality;
(b) to develop and evaluate the policies and programs of the municipality;
(c) to determine which services the municipality provides;
(d) to ensure that administrative policies, practices and procedures and controllership policies, practices and procedures are in place to implement the decisions of council;
(d.1) to ensure the accountability and transparency of the operations of the municipality, including the activities of the senior management of the municipality;
(e) to maintain the financial integrity of the municipality; and
(f) to carry out the duties of council under this or any other Act. 2001, c. 25, s. 224; 2006, c. 32, Sched. A, s. 99.

The head of council, or mayor, has two sections that define his or her responsibilities:

Role of head of council
225. It is the role of the head of council,
(a) to act as chief executive officer of the municipality;
(b) to preside over council meetings so that its business can be carried out efficiently and effectively;
(c) to provide leadership to the council;
(c.1) without limiting clause (c), to provide information and recommendations to the council with respect to the role of council described in clauses 224 (d) and (d.1);
(d) to represent the municipality at official functions; and
(e) to carry out the duties of the head of council under this or any other Act. 2001, c. 25, s. 225; 2006, c. 32, Sched. A, s. 100.

and this:

226.1 As chief executive officer of a municipality, the head of council shall,
(a) uphold and promote the purposes of the municipality;
(b) promote public involvement in the municipality’s activities;
(c) act as the representative of the municipality both within and outside the municipality, and promote the municipality locally, nationally and internationally; and
(d) participate in and foster activities that enhance the economic, social and environmental well-being of the municipality and its residents. 2006, c. 32, Sched. A, s. 101.

Subject to some limits on individual confidentiality, council records are available to the public:

Inspection of records
253. (1) Subject to the Municipal Freedom of Information and Protection of Privacy Act, any person may, at all reasonable times, inspect any of the records under the control of the clerk, including,
(a) by-laws and resolutions of the municipality and of its local boards;
(b) minutes and proceedings of regular, special or committee meetings of the council or local board, whether the minutes and proceedings have been adopted or not;
(c) records considered at a meeting, except those records considered during that part of a meeting that was closed to the public;
(d) the records of the council;
(e) statements of remuneration and expenses prepared under section 284. 2001, c. 25, s. 253 (1).

A recent decision in the case of a Freedom of Information Act request files in Toronto may throw into question whether emails between councillors are open to an FOI request, but this is a topic for another post.

Municipalities can create a code of conduct for councillors and members of municipal boards:

Code of conduct
223.2 (1) Without limiting sections 9, 10 and 11, those sections authorize the municipality to establish codes of conduct for members of the council of the municipality and of local boards of the municipality. 2006, c. 32, Sched. A, s. 98.

However, the MA states clearly in the next paragraph that violation of that code is not an offence:

No offence
(2) A by-law cannot provide that a member who contravenes a code of conduct is guilty of an offence. 2006, c. 32, Sched. A, s. 98.

An integrity commissioner, if appointed, may recommend the municipality apply a civil penalty if someone proves guilty of a violation:

Inquiry by Commissioner
223.4 (1) This section applies if the Commissioner conducts an inquiry under this Part,
(a) in respect of a request made by council, a member of council or a member of the public about whether a member of council or of a local board has contravened the code of conduct applicable to the member; or
(b) in respect of a request made by a local board or a member of a local board about whether a member of the local board has contravened the code of conduct applicable to the member. 2006, c. 32, Sched. A, s. 98.
<snip>
Penalties
(5) The municipality may impose either of the following penalties on a member of council or of a local board if the Commissioner reports to the municipality that, in his or her opinion, the member has contravened the code of conduct:
1. A reprimand.
2. Suspension of the remuneration paid to the member in respect of his or her services as a member of council or of the local board, as the case may be, for a period of up to 90 days. 2006, c. 32, Sched. A, s. 98.

Similarly, a board may impose those penalties on a violator if the municipality chooses not to do so, and the commissioner has found fault:

Same
(6) The local board may impose either of the penalties described in subsection (5) on its member if the Commissioner reports to the board that, in his or her opinion, the member has contravened the code of conduct, and if the municipality has not imposed a penalty on the member under subsection (5) in respect of the same contravention. 2006, c. 32, Sched. A, s. 98.

A municipality can also appoint an ombudsman:

Ombudsman
223.13 (1) Without limiting sections 9, 10 and 11, those sections authorize the municipality to appoint an Ombudsman who reports to council and whose function is to investigate in an independent manner any decision or recommendation made or act done or omitted in the course of the administration of the municipality, its local boards and such municipally-controlled corporations as the municipality may specify and affecting any person or body of persons in his, her or its personal capacity. 2006, c. 32, Sched. A, s. 98.

However, these appointments come with a cost to the taxpayers (and there is a provincial ombudsman the public can call). Whether such appointments are effective for small municipalities is open to debate. However, regional appointments may be better and less expensive.

As raised at council, Monday, any member of council may ask for a recorded vote on any issue:

Recorded vote
246. (1) If a member present at a meeting at the time of a vote requests immediately before or after the taking of the vote that the vote be recorded, each member present, except a member who is disqualified from voting by any Act, shall announce his or her vote openly and the clerk shall record each vote. 2001, c. 25, s. 246 (1).

I believe it is the responsibility of an elected member of council to request a recorded vote when he or she believes it is important, and that responsibility should not be put on the shoulders of staff. Also, because we vote many times every meeting – often over minor procedural matters – it diminishes the importance of a recorded vote if every vote, no mater how inconsequential, is recorded.

No one at the table can abstain from voting, and to do so is counted as a negative vote. this means the mayor must vote as any member of council, or her/his vote is treated as a negative vote:

Failure to vote
(2) A failure to vote under subsection (1) by a member who is present at the meeting at the time of the vote and who is qualified to vote shall be deemed to be a negative vote. 2001, c. 25, s. 246 (2).

This applies to local boards and committees, as well: their chairs must vote when a vote is called or it is considered a negative vote.

Closed meetings are permitted under the following circumstances:

239. (1) Except as provided in this section, all meetings shall be open to the public. 2001, c. 25, s. 239 (1).

Exceptions
(2) A meeting or part of a meeting may be closed to the public if the subject matter being considered is,
(a) the security of the property of the municipality or local board;
(b) personal matters about an identifiable individual, including municipal or local board employees;
(c) a proposed or pending acquisition or disposition of land by the municipality or local board;
(d) labour relations or employee negotiations;
(e) litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board;
(f) advice that is subject to solicitor-client privilege, including communications necessary for that purpose;
(g) a matter in respect of which a council, board, committee or other body may hold a closed meeting under another Act. 2001, c. 25, s. 239 (2).

These reasons are commonly seen on council agendas, but the Act also allows other reasons for a closed door meeting:

Other criteria
(3) A meeting shall be closed to the public if the subject matter relates to the consideration of a request under the Municipal Freedom of Information and Protection of Privacy Act if the council, board, commission or other body is the head of an institution for the purposes of that Act. 2001, c. 25, s. 239 (3).
Educational or training sessions
(3.1) A meeting of a council or local board or of a committee of either of them may be closed to the public if the following conditions are both satisfied:
1. The meeting is held for the purpose of educating or training the members.
2. At the meeting, no member discusses or otherwise deals with any matter in a way that materially advances the business or decision-making of the council, local board or committee. 2006, c. 32, Sched. A, s. 103 (1).

In general, votes cannot be made in a closed meeting unless they are specifically to give direction to staff or on a procedural matter:

Open meeting
(5) Subject to subsection (6), a meeting shall not be closed to the public during the taking of a vote. 2001, c. 25, s. 239 (5).
Exception
(6) Despite section 244, a meeting may be closed to the public during a vote if,
(a) subsection (2) or (3) permits or requires the meeting to be closed to the public; and
(b) the vote is for a procedural matter or for giving directions or instructions to officers, employees or agents of the municipality, local board or committee of either of them or persons retained by or under a contract with the municipality or local board. 2001, c. 25, s. 239 (6).

Monday, the deputy-mayor requested a staff report to explain Section 270 of the Act. This section says:

Adoption of policies
270. (1) A municipality shall adopt and maintain policies with respect to the following matters:
1. Its sale and other disposition of land.
2. Its hiring of employees.
3. Its procurement of goods and services.
4. The circumstances in which the municipality shall provide notice to the public and, if notice is to be provided, the form, manner and times notice shall be given.
5. The manner in which the municipality will try to ensure that it is accountable to the public for its actions, and the manner in which the municipality will try to ensure that its actions are transparent to the public.
6. The delegation of its powers and duties. 2006, c. 32, Sched. A, s. 113.
Policies of local boards
(2) A local board shall adopt and maintain policies with respect to the following matters:
1. Its sale and other disposition of land.
2. Its hiring of employees.
3. Its procurement of goods and services. 2006, c. 32, Sched. A, s. 113.

The Act says council MUST have a clerk, but having a CAO is entirely optional:

Clerk
228. (1) A municipality shall appoint a clerk whose duty it is,
(a) to record, without note or comment, all resolutions, decisions and other proceedings of the council;
(b) if required by any member present at a vote, to record the name and vote of every member voting on any matter or question;
(c) to keep the originals or copies of all by-laws and of all minutes of the proceedings of the council;
(d) to perform the other duties required under this Act or under any other Act; and
(e) to perform such other duties as are assigned by the municipality. 2001, c. 25, s. 228 (1).

Chief administrative officer
229. A municipality may appoint a chief administrative officer who shall be responsible for,
(a) exercising general control and management of the affairs of the municipality for the purpose of ensuring the efficient and effective operation of the municipality; and
(b) performing such other duties as are assigned by the municipality. 2001, c. 25, s. 229.

Similarly, a treasurer is a requirement:

Treasurer

286. (1) A municipality shall appoint a treasurer who is responsible for handling all of the financial affairs of the municipality on behalf of and in the manner directed by the council of the municipality, including,
(a) collecting money payable to the municipality and issuing receipts for those payments;
(b) depositing all money received on behalf of the municipality in a financial institution designated by the municipality;
(c) paying all debts of the municipality and other expenditures authorized by the municipality;
(d) maintaining accurate records and accounts of the financial affairs of the municipality;
(e) providing the council with such information with respect to the financial affairs of the municipality as it requires or requests;
(f) ensuring investments of the municipality are made in compliance with the regulations made under section 418. 2001, c. 25, s. 286 (1).

Other municipal employees are hired at the discretion of the council.

The Act says “shall” 903 times, and “may” 1,036. “Shall not” appears 119 times in the Act. “Must” appears 97 times, “must not” only twice. “Shall” includes this:

Consultation
3. (1) The Province of Ontario endorses the principle of ongoing consultation between the Province and municipalities in relation to matters of mutual interest and, consistent with this principle, the Province shall consult with municipalities in accordance with a memorandum of understanding entered into between the Province and the Association of Municipalities of Ontario. 2005, c. 8, s. 1.

Sometimes both shall and may appear in the same section:

Tree by-laws
135. (1) Subject to subsection (4) and without limiting sections 9, 10 and 11, a local municipality may prohibit or regulate the destruction or injuring of trees. 2006, c. 32, Sched. A, s. 71 (1).
Woodlands
(2) Without limiting sections 9, 10 and 11, an upper-tier municipality may prohibit or regulate the destruction or injuring of trees in woodlands designated in the by-law. 2006, c. 32, Sched. A, s. 71 (1).

Factor to be considered
(5) In passing a by-law regulating or prohibiting the injuring or destruction of trees in woodlands, a municipality shall have regard to good forestry practices as defined in the Forestry Act. 2001, c. 25, s. 135 (5); 2002, c. 17, Sched. A, s. 27 (1).

So it’s important to read the Act carefully to determine whether a section presents an obligation or an option.

As for bonusing, the Act clearly states a municipality cannot do it:

ECONOMIC DEVELOPMENT SERVICES
Assistance prohibited
106. (1) Despite any Act, a municipality shall not assist directly or indirectly any manufacturing business or other industrial or commercial enterprise through the granting of bonuses for that purpose. 2001, c. 25, s. 106 (1).
Same
(2) Without limiting subsection (1), the municipality shall not grant assistance by,
(a) giving or lending any property of the municipality, including money;
(b) guaranteeing borrowing;
(c) leasing or selling any property of the municipality at below fair market value; or
(d) giving a total or partial exemption from any levy, charge or fee. 2001, c. 25, s. 106 (2).
Exception
(3) Subsection (1) does not apply to a council exercising its authority under subsection 28 (6), (7) or (7.2) of the Planning Act or under section 365.1 of this Act. 2001, c. 25, s. 106 (3); 2002, c. 17, Sched. A, s. 23; 2006, c. 23, s. 34.

On the other hand, sections 107 and 108 describe powers the municipality has to create small business initiatives, and, in some cases, provide loans. Section 110 discusses the limited conditions under which tax exemptions can be provided.

These are just some of the items in the Municipal Act that councils and administrators have to consider in its activities, its meetings and its planning. It’s far too large to provide more than just this brief sample here. Anyone who wants to be fully informed about the nature of municipal governance should also read the Act and the the other laws and policies that guide and direct us.

~~~~~

* Others includes the Municipal Conflict of Interest Act, the Public Libraries Act, the Planning Act, the Public Inquiries Act, the Highway Traffic Act,the municipal procedural bylaw, code of conduct and more. I will deal with some of these in subsequent posts.