2017-013 By-law to Appoint a Meeting Investigator and Repeal By-Law no. 2016-013The Corporation of the Township of Oro-Medonte
By -Law No. 2017-013
A By-law to Appoint a Meeting Investigator
and Repeal By -Law No. 2016-013
Whereas Section 239.2 (1) of the Municipal Act, 2001, S.O. 2001, c. 25, as amended
authorize a municipality to appoint an investigator who has the function to investigate in
an independent manner, on a complaint made to him or her by any person, whether the
municipality or a local board has complied with section 239 or a procedure by-law under
section 238 (2) in respect of a meeting or part of a meeting that was closed to the
public, and to report on the investigation;
And Whereas The County of Simcoe has entered into an agreement with Local
Authority Services "LAS" to provide meeting investigator services for 2017 and 2018;
And Whereas said agreement provides that member municipalities of the County of
Simcoe may participate;
And Whereas the Council of The Corporation of the Township of Oro-Medonte does
find it expedient to continue to participate in the joint service contract between The
County of Simcoe and Local Authority Services "LAS" and to appoint a meeting
investigator to investigate complaints initiated under Section 239.1 of the Municipal Act,
2001, as amended;
And Whereas Council for The Corporation of the Township of Oro-Medonte declared,
by Motion No. C161109-33, that the Township participate in the joint service contract
agreement between the County of Simcoe and Local Authority Services "LAS" for
closed meeting investigation services for 2017 and 2018;
Now Therefore the Council of the Township of Oro-Medonte hereby enacts as follows:
1. That Local Authority Services "LAS" be appointed as the Township of Oro-
Medonte's meeting investigator for 2017 and 2018.
2. That the attached agreement between The Corporation of the County of Simcoe
and Local Authority Services "LAS" forms part of this By -Law.
3. That By-law No. 2016-013 is hereby repealed in its entirety.
4. And That this by-law shall be effective January 1, 2017.
By -Law Read a First, Second and Third time, and Passed this 25th day of
January, 2017.
The Corporation of the Township of Oro-Medonte
May r, H. S'. Hu es
_�'7 /1�
Clerk, J. Doxfdlas Irwin
INVESTIGATOR SERVICES AGREEMENT
This Agreement made this 14 day of 04"Yv ber_ 2016
BETWEEN
The Corporation of the County of Simcoe
(the "Municipality")
,and,
Local Authority Services
("LAS")
(each a "Party" and together the "Parties")
RECITALS
WHEREAS effective January 1, 2008, Section 239.1 of the Municipal Act, 2001, as
amended (the "Act"), will permit a person to request an investigation of whether a
municipality or local board has complied with Section 239 of the Act and/or a procedure
by-law enacted pursuant to Subsection 238 (2) of the Act in respect of a meeting or part
of a meeting that was closed to the public;
AND WHEREAS the investigation of the relevant municipality or local board must be
undertaken by an Investigator appointed by the municipality pursuant to Sections 9, 10,
11, and 239.2 of the Act or by an Ombudsman appointed pursuant to the Ombudsman Act
if the municipality has not appointed an Investigator under the Act;
AND WHEREAS the Municipality deems it desirable that all requests for an
investigation be undertaken in the public interest by an appointed independent and
impartial investigator (the "Investigator");
AND WHEREAS the Municipality deems it desirable to appoint LAS as the Investigator
to investigate all requests received by the Municipality after the date of this agreement
pursuant to the Act, respecting any meeting of the Municipality's council, a Iocal board,
or a committee of either of them;
2
AND WHEREAS LAS is dedicated to providing services to Ontario municipalities, and
is interested in acting as the Investigator for the Municipality on the terms and conditions
set out in this Agreement;
NOW THEREFORE in consideration of the mutual covenants and agreements contained
herein, the Parties agree as follows:
Appointment
1. Pursuant to the Act, the municipalities listed in Schedule B attached hereto are a
Party to this agreement and hereby appoints LAS to provide the Investigator
Services in accordance with the Act, for all requests for an investigation of the
Council and Committees of the Municipality and, the Local Boards, and/or their
Committees. For the purposes of this Agreement, "committee" and "local board"
shall have the meaning as defined in Section 238 of the Act.
2. Within thirty (30) days of the execution of this Agreement, the Municipality
hereby agrees to provide to LAS or its delegate a list of all of the Local Boards
and Committees to whom this Agreement applies. The Municipality further
agrees to give notice in writing of this Agreement and the appointing by-law to
each of the Local Boards and/or Committees affected by this Agreement
Powers
The Municipality hereby grants to LAS those powers and duties outlined in
Section 239.2 of the Act, including any amendments thereto, and as set out in
Schedule "A" to this Agreement.
4. LAS agrees to undertake timely, impartial, and independent investigations and
they shall be confidential as required by Section 239.2(5)(b) of the Act.
5. The Parties agree not to disclose any confidential information related to the
Services to any party (other than a Party's legal counsel, accountants or other
advisors who have a need to know such information and have agreed to keep such
terms confidential) except information as agreed to by the parties or to comply
with any applicable law. Either Party shall be entitled to all remedies available at
law or in equity to enforce or seek relief in connection with this confidentiality
obligation.
Delegation
6. The Parties acknowledge and agree that LAS, pursuant to Section 239.2(6) of the
Act, may delegate all of its powers and duties as Investigator to a third party (the
"Delegate"). Any and all rights and obligations of LAS under this Agreement
shall also be assigned to the Delegate accordingly. LAS agrees to promptly notify
the Municipality of the name of the Delegate.
Each Party to this Agreement agrees to indemnify and save harmless the other
(hereinafter referred to as the "Innocent Party") from and against all liabilities,
losses, suits, claims, demands, damages, expenses, costs (including all legal
costs), fines and actions of any kind or nature whatsoever or which may be
incurred, sustained or paid by the Innocent Party in consequence of the defaulting
Party's (or their Delegate's) wilful misconduct, negligence, bad faith, non-
performance or breach of any of the terms, conditions, representations, warranties,
covenants or any provision under this agreement, provided that the Innocent
Party shall give prompt written notice of any such liabilities, losses, suits, claims,
demands, damages, expenses, costs (including all legal costs), fines and actions of
any kind or nature, to the defaulting Party. Nothing in this Agreement shall be
interpreted as conferring liability on an Innocent Party for the wilful misconduct,
gross negligence, or bad faith of the defaulting Party or their Delegate.
Process
8. Upon receipt of a request for an investigation regarding the Meeting, it is agreed
that the Clerk of the Municipality shall forthwith forward the following
documents to LAS or the Delegate, as appropriate:
1) The original request for an investigation;
2) A certified copy of the municipal procedure by-law and, if applicable, the
procedure by-law for the Local Board;
3) A certified copy of the municipal notice by-law and, if applicable, the
notice by-law for the Local Board;
4) A certified copy of the agenda with all relevant attachments relating to
the Meeting;
5) A certified copy of the notice given for the Meeting;
6) A certified copy of the minutes of the Meeting;
7) A contact list for all members of the Council, Local Board or Committee
for which the request is made and for all persons present at the Meeting;
8) Such other information or documentation that the Clerk of the
Municipality deems relevant; and
9) Such other information or documentation that LAS or the Delegate may
from time to time deem relevant to the investigation.
Fees
9. The Municipality agrees to pay fees and expenses of LAS or the Delegate for the
Services (the "Fees"):
1) A retainer fee of three -hundred and thirty ($330) per year for the term, per
municipality party to this agreement, plus applicable taxes, payable upon
execution of this Agreement by the County of Simcoe;
4
2) An hourly investigation fee of Two Hundred Twenty Five Dollars
($225.00) plus all applicable taxes;
3) All legal fees incurred by LAS or the Delegate arising out of a claim made
by a third -party regarding this Agreement; and
10. The investigation fee shall be billed to the appropriate municipality receiving the
investigation services by LAS or its Delegate, as appropriate.
11. The retainer fee shall be billed by LAS to the County of Simcoe.
12. Any investigation fee submitted by LAS or the Delegate shall be deemed to be a
debt owed to both LAS and the Delegate until paid in full by the Municipality
receiving the investigation services.
Additional Services Provided by LAS or the Delegate
13. LAS agrees to maintain, or cause the Delegate to maintain, a website to which the
Municipality shall have access during the Term. The website will include the
following features:
a. Information and updates on closed meeting procedures;
b. The panel of personnel hired by LAS or the Delegate to fulfill the
Services, including experience; and
c. Access to all reports made by LAS or the Delegate.
Term
14. The term of this Agreement shall be two years commencing on the first day of
January 2017 and ending on December 31, 2018 (the "Term").
15. Subject to agreement of the parties, this agreement may be renewed for a
subsequent term(s), subject to acceptable performance determined by the
Municipality.
Renewal
16. LAS agrees to invoice the Municipality for the retainer fee related to the renewal
period prior to the commencement of the renewal term.
Termination
17. This Agreement may be terminated by either Party or municiplaities on ninety
(90) days written notice to the other Party or municiplaities provided that any
investigations commenced prior to the termination date shall be completed
pursuant to this Agreement and the appointing by-law, and all related Fees shall
be paid as set out herein.
W
Dispute Resolution
18. Any controversy, dispute, difference, question or claim arising between the
Parties in connection with this Agreement that cannot be resolved by a manager
from each Party (collectively, the "Dispute") shall be settled in accordance with
this Article.
19. The aggrieved Party or municiplaities shall send the other Party written notice
identifying the Dispute, its position on the Dispute and the remedy sought. Upon
receipt of such written notice, a senior officer of the other Party shall enter into
good faith negotiations with a senior officer of the aggrieved Party to resolve the
Dispute.
20. If the Dispute has not been resolved within thirty (30) days after such written
notice has been given, either Party may avail itself of any mediation or arbitration
process or means legally available to resolve the Dispute.
Miscellaneous
21. All provisions herein shall enure to the benefit of and be binding upon the Parties
and their respective successors and permitted assigns.
22. Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall not invalidate the remaining provisions hereof and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. In respect of any
provision so determined to be unenforceable or invalid, the Parties agree to
negotiate in good faith to replace the unenforceable or invalid provision with a
new provision that is enforceable and valid in order to give effect to the business
intent of the original provision to the extent permitted by law and in accordance
with the intent of this Agreement.
23. This Agreement and RFQ 2016-124, including any Schedule attached hereto,
constitutes the entire Agreement between the Parties with respect to the subject
matter hereof and cancels and supersedes any prior agreements, undertakings,
declarations, commitments, representations, written or oral, in respect thereof.
This Agreement shall be read with all changes of gender or number required by
the context.
24 In the event of a conflict between these contract documents the following order or
precedence shall apply:
• Agreement;
• RFQ 2016-124;
• LAS submission.
R
25. No modification of or amendment to this Agreement shall be valid or binding
unless set forth in writing and duly executed by each of the Parties and no waiver
of any breach of any term or provision of this Agreement shall be effective or
binding unless made in writing and signed by the Party purporting to give the
same and, unless otherwise provided, shall be limited to the specific breach
waived.
26. Each of the Municipality and LAS shall from time to time execute any and all
documents and perform such other acts as may be necessary or expedient to
further the purposes of this Agreement and the transactions contemplated hereby.
27. Time shall be of the essence of this Agreement.
28. The Municipality and LAS are not and shall not be deemed to be partners or joint
venturers with one another and nothing herein shall be construed so as to impose
any liability as such on any of them. The Municipality agrees that LAS shall
perform its obligations under this Agreement as an independent contractor, and
shall not be deemed to be a trustee for any person, whether or not a party to this
Agreement, in connection with the discharge by LAS of such obligations.
29. This Agreement shall be governed by and interpreted in accordance with the laws
of the Province of Ontario and the federal laws of Canada applicable herein.
30. All notices which may be necessary or proper for either Party to serve upon the
other shall be served by delivery to the Party to whom the notice is to be given or
sent postage pre -paid to the following addresses or by facsimile transmission to
the facsimile number set out below.:
To the County of Simcoe — Clerk's Office:
Administration Centre, 1110 Highway 26
Midhurst, ON L9X 1 N6
Facsimile Number: (705) 725-1285
To LAS:
200 University Avenue, Suite 801
Toronto, Ontario M5H 3C6
Facsimile Number: (416) 971-6191
All such notices shall be conclusively deemed to have been given and received
upon the day the same is personally delivered or, if mailed or sent by facsimile as
aforesaid, three (3) business days after the same is mailed as aforesaid. Either
Party may at any time by notice in writing to the other change its address for
service of notice.
7
3 1 . This Agreement may be executed in several counterparts, each of which so
executed being deemed to be an original, and such counterparts together shall
constitute but one and the same instrument and notwithstanding their date of
execution shall be deemed to be made and dated as of the date hereof.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
On behalf of the county municipalities listed in Schedule B attached hereto, County
of Simcoe and LAS have respectively executed and delivered this Agreement as of the
date first set out above.
County of Simcoe
Gerry Marhsall, Warden
J n Daly, Clerk
I have authority to bind the corporation
Local Authority Services
>J�'Lp
Judy ezel[
0 -
Director AMO Enterprise Centre,
Business Partnerships and LAS
I have authority to bind the corporation
SCHEDULE "A"
The following are the relevant statutory authorities enacted at the time of execution of
this Agreement:
The Municipal Act, 2401, as amended
Investigator
239.2 (1) Without limiting sections 9, 10 and 11, those sections authorize the
municipality to appoint an investigator who has the function to investigate in an
independent manner, on a complaint made to him or her by any person, whether the
municipality or a local board has complied with section 239 or a procedure by-law under
subsection 238 (2) in respect of a meeting or part of a meeting that was closed to the
public, and to report on the investigation. 2006, c. 32, Sched. A, s. 104.
Powers and duties
7 Subject to this section, in carrying out his or her functions under subsection (1), the
investigator may exercise such powers and shall perform such duties as may be assigned
to him or her by the municipality. 2006, c. 32, Sched. A, s. 104.
Matters to which municipality is to have regard
7 In appointing an investigator and in assigning powers and duties to him or her, the
municipality shall have regard to, among other matters, the importance of the matters
listed in subsection (5). 2006, c. 32, Sched. A, s. 104.
Same, investigator
In carrying out his or her functions under subsection (1), the investigator shall have
regard to, among other matters, the importance of the matters listed in subsection (5).
2006, c. 32, Sched. A, s. 104.
Same
The matters referred to in subsections (3) and (4) are,
(a) the investigator's independence and impartiality;
(b) confidentiality with respect to the investigator's activities; and
(c) the credibility of the investigator's investigative process. 2006, c. 32,
Sched. A, s. 104.
Delegation
.(Q An investigator may delegate in writing to any person, other than a member of
council, any of the investigator's powers and duties under this Part. 2006, c. 32,
Sched. A, s. 104.
Same
7 An investigator may continue to exercise the delegated powers and duties, despite the
delegation. 2006, c. 32, Sched. A, s. 104.
Status
An investigator is not required to be a municipal employee. 2006, c. 32, Sched. A,
s. 104.
Application
Subsection 223.13 (6) and sections 223.14 to 223.18 apply with necessary
modifications with respect to the exercise of functions described in this section. 2006,
c. 32, Sched. A, s. 104.
Report and recommendations
If, after making an investigation, the investigator is of the opinion that the meeting
or part of the meeting that was the subject -matter of the investigation appears to have
been closed to the public contrary to section 239 or to a procedure by-law under
subsection 238 (2), the investigator shall report his or her opinion and the reasons for it to
the municipality or local board, as the case may be, and may make such
recommendations as he or she thinks fit. 2006, c. 32, Sched. A, s. I04.
Publication of reports
The municipality or local board shall ensure that reports received under subsection
(10) by the municipality or local board, as the case may be, are made available to the
public. 2006, c. 32, Sched. A, s. 104.
Ombudsman
223.13
Powers paramount
The powers conferred on the Ombudsman under this Part may be exercised
despite any provision in any Act to the effect that any such decision, recommendation, act
or omission is final, or that no appeal lies in respect of them, or that no proceeding or
decision of the person or organization whose decision, recommendation, act or omission
it is shall be challenged, reviewed, quashed or called in question. 2006, c. 32, Sched. A,
S.98
Investigation
223.14 (1) Every investigation by the Ombudsman shall be conducted in private.
2006, c. 32, Sched. A, s. 98.
Opportunity to make representations
M The Ombudsman may hear or obtain information from such persons as he or
she thinks fit, and may make such inquiries as he or she thinks fit and it is not necessary
for the Ombudsman to hold any hearing and no person is entitled as of right to be heard
by the Ombudsman, but if at any time during the course of an investigation it appears to
the Ombudsman that there may be sufficient grounds for him or her to make any report or
recommendation that may adversely affect the municipality, a local board, a municipally -
controlled corporation or any other person, the Ombudsman shall give him, her or it an
opportunity to make representations respecting the adverse report or recommendation,
either personally or by counsel. 2006, c. 32, Sched. A, s. 98.
Application of Ombudsman Act
Section 19 of the Ombudsman Act applies to the exercise of powers and the
performance of duties by the Ombudsman under this Part. 2006, c. 32, Sched. A, s. 98.
Same
For the purposes of subsection (3), references in section 19 of the Ombudsman
Act to "any governmental organization", "the Freedom of Information and Protection of
Privacy Act" and "the Public Service Act" are deemed to be references to "the
municipality, a local board or a municipally -controlled corporation", "the Municipal
Freedom of Information and Protection of Privacy Act" and "this Act", respectively.
2006, c. 32, Sched. A, s. 98.
Note: On the day the Statutes of Ontario, 2006, chapter 35, Schedule C, section 134
comes into force, subsection (4) is amended by the Statutes of Ontario, 2006, chapter
35, Schedule C, subsection 134 (3) by striking out "the Public Service Act" and
substituting "the .Public Service of Ontario Act, 2046". See: 2006, c. 35, Sched. C, ss.
134 (3),137 (1).
Duty of confidentiality
223.15 (1) Subject to subsection (2), the Ombudsman and every person acting
under the instructions of the Ombudsman shall preserve secrecy with respect to all
matters that come to his or her knowledge in the course of his or her duties under this
Part. 2006, c. 32, Sched. A, s. 98.
Disclosure
(2) The Ombudsman may disclose in any report made by him or her under this
Part such matters as in the Ombudsman's opinion ought to be disclosed in order to
establish grounds for his or her conclusions and recommendations. 2006, c. 32, Sched. A,
S.98.
Section prevails
(33,) This section prevails over the Municipal Freedom of Information and
Protection of Privacy Act. 2006, c. 32, Sched. A, s. 98.
D
No review, etc.
223.16 No proceeding of the Ombudsman under this Part shall be held bad for
want of form, and, except on the ground of lack of jurisdiction, no proceeding or decision
of the Ombudsman is liable to be challenged, reviewed, quashed or called in question in
any court. 2006, c. 32, Sched. A, s. 98.
Testimony
223.17 (1) The Ombudsman and any person acting under the instructions of the
Ombudsman shall not be called to give evidence in any court, or in any proceedings of a
judicial nature, in respect of anything coning to his or her knowledge in the exercise of
his or her functions under this Part. 2006, c. 32, Sched. A, s. 98.
Same
(2) Anything said or any information supplied or any document or thing produced
by any person in the course of any investigation by or proceedings before the
Ombudsman under this Part is privileged in the same manner as if the inquiry or
proceedings were proceedings in a court. 2006, c. 32, Sched. A, s. 98.
Effect on other rights, etc.
223.18 The rights, remedies, powers, duties and procedures established under
sections 223.13 to 223.17 are in addition to the provisions of any other Act or rule of law
under which any remedy or right of appeal or objection is provided for any person, or any
procedure is provided for the inquiry into or investigation of any matter, and nothing in
this Part limits or affects any such remedy or right of appeal or objection or procedure.
2006, c. 32, Sched. A, s. 98.
Ombudsman Act, R.S.Q. 1990, CHAPTER 0.6
Evidence
19. (1) The Ombudsman may from time to time require any officer,
employee or member of any public sector body who in his or her opinion is able to
give any information relating to any matter that is being investigated by the
Ombudsman to furnish to him or her any such information, and to produce any
documents or things which in the Ombudsman's opinion relate to any such matter
and which may be in the possession or under the control of that person. R.S.O.
1990, c. 0.6, s. 19 (1); 2014, c. 13, Sched. 9, s. 11 (1).
Examination under oath
(2) The Ombudsman may summon before him or her and examine on oath,
(a) any complainant;
(b) any person who is an officer or employee or member of any public
sector body and who, in the Ombudsman's opinion, is able to give any
information mentioned in subsection (1); or
(c) any other person who, in the Ombudsman's opinion, is able to give any
information mentioned in subsection (1),
and for that purpose may administer an oath. R.S.Q. 1990, c. 0.6, s. 19 (2); 2014,
c. 13, Sched. 9, s. 11 (2).
Secrecy
(3) Subject to subsection (4), no person who is bound by the provisions of
any Act, other than the Public Service of Ontario Act, 2006, the Municipal Act,
2001 or the City of Toronto Act, 2006, as the case may be, to maintain secrecy in
relation to, or not to disclose, any matter shall be required to supply any
information to or answer any question put by the Ombudsman in relation to that
matter, or to produce to the Ombudsman any document or thing relating to it, if
compliance with that requirement would be in breach of the obligation of secrecy
or non -disclosure. R.S.O. 1990, c. 0.6, s. 19 (3); 2006, c. 35, Sched. C, s. 94 (3);
2014, c. 13, Sched. 9, s. 11 (3).
Providing personal information despite privacy Acts
(3.1) A person who is subject to the Freedom of Information and Protection
of Privac'YAct, the Municipal Freedom of Information and Protection uf'Privacy
Act or the Personal Health Information Protection Act, 2004 is not prevented by
any provisions in those Acts from providing personal information to the
Ombudsman, when the Ombudsman requires the person to provide the
information under subsection (l) or (2). 2004, c. 3, Sched. A, s. 94; 2014, c. 13,
Sched. 9, s. 11 (4).
Idem
(4) With the previous consent in writing of any complainant, any person to
whom subsection (3) applies may be required by the Ombudsman to supply
information or answer any question or produce any document or thing relating
only to the complainant, and it is the duty of the person to comply with that
requirement. R.S.O. 1990, c. 0.6, s. 19 (4).
Privileges.
(5) Every person has the same privileges in relation to the giving of
information, the answering of questions, and the production of documents and
things as witnesses have in any court. R.S.O. 1990, c. 0.6, s. 19 (5).
Protection
(6) Except on the trial of any person for perjury in respect of the person's
sworn testimony, no statement made or answer given by that or any other person
in the course of any inquiry by or any proceedings before the Ombudsman is
admissible in evidence against any person in any court or at any inquiry or in any
other proceedings, and no evidence in respect of proceedings before the
Ombudsman shall be given against any person. R.S.O. 1990, c. 0.6, s. 19 (6).
Right to object to answer
(7) A person giving a statement or answer in the course of any inquiry or
proceeding before the Ombudsman shall be informed by the Ombudsman of the
right to object to answer any question under section 5 of the Canada Evidence Act.
R.S.O. 1990, c. 0.6, s. 19 (7).
Prosecution
(8) No person is liable to prosecution for an offence against any Act, other
than this Act, by reason of his or her compliance with any requirement of the
Ombudsman under this section. R.S.O. 1990, c. 0.6, s. 19 (8).
Fees
(9) Where any person is required by the Ombudsman to attend before him or
her for the purposes of this section, the person is entitled to the same fees,
allowances, and expenses as if he or she were a witness in the Superior Court of
Justice, and the provisions of any Act, regulation or rule in that behalf apply
accordingly. R.S.O. 1990, c. 0.6, s. 19 (9); 2006, c. 19, Sched. C, s. 1 (1).
SCHEDULE "B"
Municipalities party to this agreement
1. County of Simcoe
2. Township of Essa
3. Town of Wasaga Beach
4. Township of Severn
5. Township of Clearview
G. Township of Ramara
7. Town of Collingwood
8. Town of Innisfil
9. Township of Oro-Medonte
10. Town of Bradford West Gwillimbury
11. Township of Adjala-Tosorontio
12. Town of New Tecumseth
13. Township of Tay