P. O. Bax 84. 2 Mille Roche: RoadTgwnghip Of Long Sault, 01v KOC IPOTel: (613) 534-sass Fax: (613) 534-2280SOUTH STORMONT E-mail." inf0@s0uthstormom‘. ca

AGENDACommittee of the Whole

South Stormont Town HallMonday, February 29, 2016

9:00 A.M. - 4:00 P.M.

Call to OrderConfirmation of AgendaDisclosure of Pecuniary InterestApproval of Minutes

> February 10, 2016DelegationsStaff Reports

> Miscellaneous Wage Rates> Council Remuneration

Discussion of Additional Items> Goals and Objectives for Term of Council> Council Email (Information and Privacy Commission)

Unfinished Business> Committee Meeting Minutes (previous Term of Council)

- Community Services: August 11, 2014o Planning & Building: September 2, 2014o Finance, Administration and Human Resources: October 20, 2014

Closed Meeting> Personal Matters

0 Specifically: Municipal EmployeesAdjournment by Resolution

TOWNSHIP OF SOUTH STORMONTCOMMITTEE OF THE WHOLE MINUTESFebru_ary 10, 2016 _ /A meeting of the Committee of the Whole of the Township

<,’Soutl-lStormont was held at Town Hall at 9:00 AM, February 10, 20A1Present (Council: Mayor Jim Bancroft

Deputy Mayor Tammy HartCouncillors Donna Primeau, David Smith, and Richard Waldroff

Staff: Betty de Haan, Chief Administrative OfficerLoriann Harbers, Director of Corporate Services/ClerkRoss Gellately, Director of Public WorksGilles Crepeau, Fire Chief

1. Call to Order

2. Confirmation of Agenda

3. Disclosure of Pecuniary Interest

4. Approval of MinutesResolution No. COTW-09-2016 Moved by Councillor Smith

Seconded by Deputy Mayor HartThat the Committee of the Whole minutes dated February 2, 2016 beadopted as circulated.CARRIED

5. Delegations

6. Staff Reports

Waste Management_Collection Cost AnalysisDirector of Public Works Gellately provided an overview of analysiswaste management collection costs.

Discussion included collection at multi-residential buildings, currentlandfill lifespan and comparing neighboring municipalities’ costs.

Station No. 4 Construction ProposalChief Crepeau provided an overview of the Key Information Reportpresented and suggested construction plan for the St. AndrewsWest fire hall.

Council was advised of potential cost savings by using the samebasic design as the recent South Glengarry fire hall and when arevised design is completed issue a tender for the construction ofthe facility.

February 10, 2016Page 2

Appointments: Committees and OtherFollowing discussion, Committee appointments remain status quowith the exception of Donna Primeau returning to the CommunityImprovement Plan Evaluation Committee with Richard Waldroff asthe Alternate, in addition to Richard Waldroff and Jim Bancroftjoining the Committee of Adjustment replacing Donna Primeau andDavid Smith.

Members agreed that when the design and layout are received forthe Ingleside Community Park, an Ad Hoc Committee will be struckto guide next steps.

Additional potential Committees include:- Fire Master Plan;- Celebration 150 Committee.

Following additional consideration, appointments may be made.

7. Discussion of Additional Items

8. Unfinished Business

SDG Noise / Nuisance By-lawMunicipal Law Enforcement Officer, Andrew Downing joined themeeting to provide an overview of the proposed Noise andNuisance by-law for the Municipalities in SD&G.

Discussion included specific types of calls, exemptions, includingfarming practices, Ontario Provincial Police support in enforcementand next steps.

9. Closed Meeting

Resolution No. COTW-10-2016 Moved by Councillor PrimeauSeconded by Councillor Smith

Be it resolved that this Council, as provided in Section 239 (2) of theMunicipal Act, 2001 move into a Committee of the Whole closed meetingat 10:25 AM to address a matter pertaining to: personal matters aboutan identifiable individual, including municipal or local board employees;Specifically: Performance Management and litigation or potentiallitigation, including maters before administrative tribunals, affecting themunicipality or local board; Specifically: Kraft/Heinz and Wilson files.CARRIED

Director of Corporate Services/Clerk Harbers left the meeting at 10:45AM

February 10, 2016Page 3

Resolution No. COTW-11-2016 Moved by Deputy Mayor HartSeconded by Councillor Waldroff

That Council move out of this Committee of the Whole closed meeting at1:30 PM.CARRIED

10. Unfinished Business

11. AdjournmentResolution No. COTW-12-2016 Moved by Councillor Smith

Seconded by Councillor PrimeauThat Council adjourn this Committee of the Whole meeting at 1:32 PM,and return to the call of the chair.CARRIED

Mayor

CIEFIZI I

Township of P. 0. Box 84. 2 Mille Roches RoadLong Sault, ON KOC IPO

SOUTH STORMONT Tel: (613) 534-8889 Fax: (613) 534-2280E-mail: betty@.r0uth.s't0rm0nt. ca

E i I;'

PERSONNELHourly Wage Rates for Seasonal Employees

Effective January 1, 2016

Job Classification 2013 rates 2014/15rates

2016 rates

Student wages? high schooll (minimum wage) f

$9.60 $10.35 General -$11.25Student - $10.55

Administrative positions - college oruniversity student g Mi

$10.65 $11.50 $12.50Administrative positions - college oruniversity student (returning second

_ye,ar Plus) ,

$10.65 $11.50 $13.50

Public Works / Recreation Labourers— college or university student

$10.65 $11.50 $12.50Public Works / Recreation Labourers- college or university student

éreturningsecond year plus) W MW

$10.65 $11.50 $13.50

Junior Lifeguard $11.00 $11-73.5-1 $12.00Lifeguard (returning second year plus) __ mC$F12.25 $13.00 $13.25Lifeguard Supervisor 7 $13.55 $14.30 $14.55Summer Events Co-Coordinator /Curator Student

$11.25 $12.25 $12.50

‘ Engineering Student(1§‘, 2"“, 3"'+ refers to the number of yearscompleted at university)

15* - $12.952nd - $13.75351+ ¢ $15.05

15* - $13.2520¢ - $14.253"’ - $15.50

N/ARefer to above

l ,__noted ratesHorticulture Student/LandscapeDesign Trainee (1=*, 2"‘, 3"’+ refers to

* the number of years completed at college)J11"

15 - $12.202nd - $12.953"“ - $13.55

15* - $12.252nd - $13.003"='+- $13.60

N/ARefer to above

noted rates

Note: It is anticipated that wage rates increase according to minimum wage (biennial) however finalapproval ls required prior to any adjustments.

Reviewed and Approved by:

CAO

THE CORPORATION OF THE TOWNSHIP OF SOUTH STORMONT

BEING

BY-LAW NO. 2016—OXXDRAFT

a by-law to establish remuneration formembers of Council of the Corporation of theTownship of South Stormont and to repealBy-law No. 2015-055.

WHEREAS

AND WHEREAS

AND WHEREAS

AND WHEREAS

AND WHEREAS

NOW THEREFQRE

the Municipal Act, 2001, c. 25 s. 5 (1)provides that the powers of a municipalcorporation are to be exercised by its council;

the Municipal Act, 2001, c. 25 s. 5 (3)provides that the powers of every council areto be exercised by by-law;

the Municipal Act, 2001, c.25, s. 283,provides that the municipality may pay anypart of the remuneration and expenses of themembers of any local board of themunicipality and of the officers andemployees of the local board;

Council did, on December 17, 2014, pass By-law No. 2014-108 providing continuedsupport for one-third of the remunerationpaid to the elected members of the counciland deemed as expenses incident to thedischarge of their duties as members of thecouncil;

when required, by-laws passed by Council ofthe Township of South Stormont shall berepealed by by-law.

the Council of the Corporation of theTownship of South Stormont enacts asfollows:

The remuneration for members of Council,effective January 1, 2016 shall be as follows:

Mayor $25,400 per fiscal year,Deputy Mayor $16,764 per fiscal year, andCouncillors $14,224 per fiscal year.

Effective January 1st, 2016 and every January1st thereafter, remuneration for members ofCouncil shall be adjusted based on theConsumer Price Index (CPI) published byStatistics Canada for the twelve month period,January to December, of the previous year.

By-law No. 2016—XXPage 2

3. Members of Council shall be paid I reimbursedfor conferences, seminars, mileage, and otherreasonable expenses, as substantiated bydocumentation and appropriate receipts,pursuant to the established Council MembersReimbursement Policy.

4. That By-law No. 2015-055 and any other by-law inconsistent with this by-law is herebyrepealed.

READ AND PASSED in open Council, signed and sealed this 9*" day ofMarch, 2016.

Mayor

Clerk

IPC Rules Councillor’s Email AnOfficial City RecordIn a decision that may set a precedent for municipalities across theprovince, Ontari0’s Information and Privacy Commissioner (IPC) hasruled that the City of Oshawa must consider an email sent by a sittingcouncillor from her personal email address an official city record. As partof its ruling, the IPC stated that any records that emanate from acouncillor’s official responsibilities as a member of council are subject toinformation access laws.

The city argues that it could not legally compel the councillor to providethe record. The parties did not refer me to any contracts, codes ofconduct orpolicies that expressly or by implication give the city thelegal right to possess or otherwise control the record, which was sentfrom the councillor’s personal iPad. The Supreme Court has stated,however, that defacto (as opposed to dejure) control is recognized ascontrol. Although a councillor is not considered to be part ofthe cityforthe purposes of the Act, neither is a councillor a stranger to the city;both are governed by the MunicipalAct.... I acknowledge that, asdiscussed above, many previous orders ofthis oflice havefound thatrecords created by city councillors are not in the control ofthe city.However, determining custody and control is at contextual exercise.None ofthe orders involvedfacts similar to those before me...

Jnformation andPrivacy Commissioner Ontario, ORDER MO-3281,The Corporation of the City ofOshawa, January 22 2016

information and Privacy Commissioner,Ontario, Canada

Commissaire a Pinformafion et a la protection de la vie privée,Ontario, Canada

ORDER MO-3281Appeal MA14-378

The Corporation of the City of Oshawa

January 22, 2016

Summary: The City of Oshawa (the city) received a request for access to all communicationsbetween a named councillor and an individual who was subsequently retained by the city toinvestigate alleged wrongdoing on the part of the city and its staff. The city identified onerjsponsive record, an email from the councillor to the investigator, but denied access to it onthe basis that it was not in its custody or under its control. The requester appealed. In thisorder, the adjudicator finds that the record at issue is under the city's control, and orders it toissue an access decision to the appellant.

Statutes Considered: Municipal Freedom oflnfoimation and Protection ofPi1'vac)/Act R.S.O.1990, c. M.56, as amended, section 4(1).

Orders Considered: Orders M-813, MO-2842, MO-2821, and MO-2749.

Cases Considered: SI‘: Elizabeth Home Society v. Hamilton (O'ty) (2005), 148 A.C.W.S. (3d)497 (Ont. Sup. Ct.), Gmada (inlbmwation Commissioner) v. Canada (Minister of NationalDefence), 2011 SCC 25 (CanLII), [2011] 2 SCR 306.

OVERVIEW:

[1] At a city of Oshawa (city) council meeting on May 21, 2013, council passed amotion to appoint a named lawyer to investigate allegations of misconduct on the partof city employees and departments in relation to the city's acquisition of a property. A

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few hours prior to the meeting, a city councillor had emailed the lawyer from thecouncillors own personal email account, asking for the lawyers feedback on a draftmotion appointing him as investigator.

[2] This appeal relates to a subsequent request under the Municipal Freedom ofInformation and Protection ofPrivacy/Act (the Act) for “all communication” between thecouncillor in question and the lawyer who was appointed to investigate (theinvestigator), between March 1 and October 1, 2013.

[3] The city responded to the request as follows:

All records responsive to your request, should they exist, would have beengenerated by the councillor in their personal capacity or as an electedofficial and not as an officer or employee of the City of Oshawa.Accordingly, access cannot be granted as the records are not within thecustody and control of the City.

[4] The requester, now the appellant, appealed the city's decision to this office.

[5] During mediation, the appellant contended that at least one record should existand is in the custody or under the control of the city. The appellant referred to a publicletter from the office of the Ombudsman Ontario, which specifically identifies an emaildated May 21, 2013 from the councillor to the investigator. The city, however,maintained its position that the email is not within its custody and control.

[6] As no further mediation was possible, the file was transferred to the adjudicationstage of the appeal process, where an adjudicator conducts an inquiiy. I sought andreceived representations from the city and the councillor in question as an affectedparty, followed by the appellant. The city and the councillor then made representationsin reply.‘ Representations were shared among parties in accordance with the IPC'sCode of Procedure and Practice D/"reclion 7, with portions of the appellant's andcouncillor’s representations withheld as they met the confidentiality criteria set out inPractice Direction 7.

[7] In this order, I find that the record at issue is under the city's control, and Iorder the city to make an access decision in response to the appellant's request.

‘ During the reply stage of adjudication (that is, after the deadline for the appellant's representations hadpassed), the appellant submitted furmer material in support of his previously filed representations. Ireviewed the additional material and determined that it is not relevant to the issue to be decided in thisappeal. I have, therefore, not considered that material in my adjudication of this matter.

_3,

RECORD:

[8] The record at issue is an email from the councillor to the investigator dated May21, 2013, including an attached draft motion.

ISSUE:

[9] The issue in this appeal is whether the record is “in the custody” or “under thecontrol” of the city under section 4(1) of the Act.

DISCUSSION:

[10] Section 4(1) of the Actreads, in part:

Every person has a right of access to a record or a part of a record in thecustody or under the control of an institution unless . . .

[11] Under section 4(1), the Act applies only to records that are in the custody orunder the control of an institution. A record will be subject to the Act if it is either inthe custody or under the control of an institution; it need not be both.2 “Custody” and“control” are not defined terms in the Act

[12] It is important to note that a finding that a record is in the custody or under thecontrol of an institution does not necessarily mean that a requester will be providedaocess to it.3 A record within an institution's custody or control may be excluded fromthe application of the Act under one of the provisions in section 52, or may be subjectto a mandatory or discretionary exemption (found at sections 6 through 15 and section38). In this appeal, the sole issue is whether the reoord at issue is in the custody orunder the control of the city.

[13] The term “institution” is defined in section 2(1), and includes a municipality. Thedefinition of “institution” does not specifically refer to elected offices such as amunicipal councillor.

[14] In St. Elizabeth Home Society v. Hamilton (C7ty),‘ the Ontario Superior Court ofJustice described the relationship between a municipal council and its elected membersas follows:

It is [a] principle of municipal law that an elected member of a municipal

2 Order P-239 and Miin/Zstry ofthe Attorney General v. Inf0m1al1'on and Privacy Commissioner; 2011 ONSC172 (Div. ct.).3 Order PO-2836.‘ (2005), 14s A.C.W.S. (3d) 497 (Ont. Sup. cc).

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council is not an agent or employee of the municipal oorporation in anylegal sense. Elected members of council are not employed by or in anyway under the oontrol of the local authority while in office.... Individualcouncil members have no authority to act for the oorporation except inconjunction with other members of council constituting a quorum at alegally constituted meeting; with the exception of the mayor or otherchief executive oflioer of the corporation, they are mere legislative officerswithout executive or ministerial duties.

[15] In Order M-813, the adjudicator reviewed this area of the law and found thatrecords held by municipal councillors may be subject to an access request under the Actin two situations:

- Where a councillor is acting as an “officer” or “employee” of themunicipality, or is discharging a special duty assigned by council, suchthat they may be considered part of the “institution”; or

~ Where, even if the above circumstances do not apply, the councillor’srecords are in the custody or under the control of the municipality onthe basis of established principles.

[16] The courts and this office have taken a broad and liberal approach to thecustody or control question.5

Factors relevant to determining “custody or control”

[17] This office has developed the following list of factors to consider in determiningwhether or not a record is in the custody or under the control of an institution.‘ The listis not intended to be exhaustive. Some of the listed factors may not be relevant in aspecific case, while other unlisted factors may apply.

o Was the reoord created by an officer or employee of the institution?’

o What use did the creator intend to make of the record?‘

o Does the institution have a statutory power or duty to carry out theactivity that resulted in the creation of the record?”

5 Ontario (Criminal Code Review Roam) v. Ontario (lrrfomration and Privacy Commissrbnerj, [1999] O.J.No. 4072; Canada PostCom. v. Canada (Minister ofPublic Works) (1995), 30 Admin. L.R. (2d) 242 (Fed.C.A.) and Order MO-1251.° Orders 120, MO-1251, PO-2306 and P0-2683.7 Order 120.‘i Orders 120 and P-239.9 Order P-912, upheld in Ontafio (Cr-imrhal Code Review Board) v. Ontario (Information and PrivacyCommrwiorrerj, cited above.

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- Is the activity in question a “core”, “central” or “basic” function of theinstitution?”

o Does the content of the record relate to the institution's mandate andfunctions?“

o Does the institution have physical possession of the reoord, eitherbecause it has been voluntarily provided by the creator or pursuant toa mandatory statutory or employment requirement?“

- If the institution does have possession of the record, is it more than“bare possession”?13

- If the institution does not have possession of the record, is it beingheld by an officer or employee of the institution for the purposes of hisor her duties as an officer or employee?“

o Does the institution have a right to possession of the record?“

o Does the institution have the authority to regulate the record'scontent, use and disposal?“

0 Are there any-limits on the use to which the institution may put therecord, what are those limits, and why do they apply to the record?”

o To what extent has the institution relied upon the record?”

~ How closely is the reoord integrated with other records held by theinstitution? 9

1° Order P-912. V1‘ Ministry of the Attorney General v. Information and Privacy Commissioner; cited above; City ofOttawav. Ontario, 2010 ONSC 6835 (Div. Ct.), leave to appeal refused (March 30,2011), Doc. M39605 (C.A.)and Orders 120 and P-239.1’ Orders 120 and P-239.1’ Order P-239 and Ministry of tire Attomey General v. Intbmiation and Privacy Commissioner, citedabove.1‘ Orders 120 and P-239.15 Orders 120 and P-239.1° Orders 120 and P-239.1’ Ministry ofthe Attomey General v. Information and Privacy Commissioner; cited above.1” Ministry of tire Attomey General v. Infomiation and Privacy Commissioner, cited above and Orders 120and P-239.1’ Orders 120 and P-239.

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What is the customary practice of the institution and institutions similarto the institution in relation to possession or control of records of thisnature, in similar circumstances?”

[18] The following factors may be relevant where an individual or organization otherthan the institution holds the record:

If the record is not in the physical possession of the institution, whohas possession of the record, and why?”

Is the individual, agency or group who or which has physicalpossession of the record an “institution” for the purposes of the Act?

Who owns the record?”

Who paid for the creation of the reoord?”

What are the circumstances surrounding the creation, use andretention of the reoord?“

Are there any provisions in any contracts between the institution andthe individual who created the record in relation to the activity thatresulted in the creation of the record, which expressly or by implicationgive the institution the right to possess or othennrise control thereoord?”

Was there an understanding or agreement between the institution, theindividual who created the record or any other party that the reoordwas not to be disclosed to the institution?” If so, what were theprecise undertakings of confidentiality given by the individual whocreated the record, to whom were they given, when, why and in whatform?

Is there any other contract, practice, procedure or circumstance thataffects the control, retention or disposal of the record by theinstitution?

1° Order MO-1251.2‘ Order PO-2683.*1 Order M 315.23 Order M 506.2‘ Order PO-2386.25 Greater Vancouver Mental Healtir Seniioe Sodety v. British Columbia (Infirrmation and Pnvacycommissioner}, [1999] B.C.J. No. 19s (s.c.).1° Orders M-165 and MO-2586.

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- Was the individual who created the record an agent of the institrfor the purposes of the activity in question? If so, what was the rof that agency, and did it carry with it a right of the institution 1..possess or otherwise control the records? Did the agent have theauthority to bind the institution?”

~ What is the customary practice of the individual who created thereoord and others in a similar trade, calling or profession in relation topossession or control of records of this nature, in similarcircumstances?”

0 To what extent, if any, should the fact that the individual ororganization that created the record has refused to provide theinstitution with a copy of the reoord determine the control issue?”

[19] In determining whether records are in the “custody or control" of an institution,the above factors must be considered oontextually in light of the purpose of thelegislation.”

[20] The test for control has also been recently considered by the Supreme Court ofCanada. In Canada (Information Commissioner) v. Canada (Minster of NationalDefence),31 the Supreme Court of Canada adopted the following two-part test on thequestion of whether an institution has oontrol of records that are not in its physicalpossession:

(1) Do the contents of the document relate to a departmental matter?

(2) Could the government institution reasonably expect to obtain acopy of the document upon request?

Background facts in this appeal

[21] The background to this matter is set out in a public letter of the provincialOmbudsman, filed as part of the -representations in this appeal. The office of theOmbudsman's letter was a result of that office's investigation into allegations that, priorto the May 21, 2013 council meeting referenced above, certain councillors had met in aclosed meeting, contrary to the provisions of the Municijoa/Act

*7 w.:-rimsrey v. Ontario (Attorney General) (1997), 34 O.R. (3d) 611 (cr\.) and David’ v Ontario(Infonnation and Privacy Commissioner) et al (2006), 217 0.A.C. 112 (Div. Ct.).ii’ Order MO-1251.*9 Order M0-1251.3° City ofOttawa v. Ontario, cited above.31 2011 scc 25, [2011] 2 SCR 306 (hereinafter NationalDefienc‘e).

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The Ombudsman's letter states:On May 21, 2013, council passed a resolution in open session to appointan independent investigator, [the named investigator], to reviewallegations made about individual employees and city departments bythe city's Auditor General in Report AG-13-09, dated May 16, 2013, andto present his findings as soon as possible to council in an open session.

On August 23, 2013, [the named investigator] issued his final report,which was presented to council at its meeting on September 3, 2013. Inhis report, [the named investigator] made eight recommendations tocouncil. These were voted on separately during the September 3meeting.

During the September 3 meeting, council passed motions to eliminatethe Office of Auditor General and not to renew the contract for theAuditor General, which was due to expire on September 6, 2013.

Alleged Closed Meetings on or about May 21, 2013Our Office received a complaint alleging that six to eight members ofCouncil met prior to the May 21, 2013 meeting to discuss theappointment of [the named investigator].Council's public meeting minutes of May 21, 2013 indicate that theresolution to appoint [the named investigator] was introduced by [twonamed councillors], and ultimately passed by a 5-4 vote. Two councilmembers were absent for the vote.

Our review determined that on May 18, 2013, [three named councillors]met in the Councillor Boardroom at City Hall to discuss allegations madeabout individual employees and city departments by the city's AuditorGeneral in Report AG-13-09, dated May 16, 2013. They also discussedthe need to hire a third party to investigate the allegations.

During the discussions, [the named councillor] put forward the name of[the named investigator] because he is a leading expert in the field ofmunicipal law and had previously conducted some work for the city inthe past. [The named councillor] informed our Office that given theseriousness of the issue, she contacted [the named investigator] toinquire about his immediate availability to conduct an investigation,subject to council's approval. According to [the named councillor], [thenamed investigator] agreed and suggested that council consider grantinghim the powers of an Integrity Commissioner to assist with hisinvestigation.

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On May 20, 2013, [three named councillors] met again to discuss thefinal wording of the motion they wished to propose to councilconcerning appointing [the named investigator]. At 2:22 p.m. on May21, 2013, [the named councillor] emailed [the named investigator],providing him with a draft copy of the proposed motion and requestingthat he identify any problems with the language prior to 5:00 p.m.,when the meeting was scheduled to begin. [A named councillor]informed our Office that he drafted the motion, but was absent for theMay 21, 2013 council meeting, so [two named councillors] introducedthe motion.

Other members of Council informed our Office that they were notpresent on May 18, 2013, with [the three named councillors] and werenot contacted by any of these councillors to discuss the motion toappoint [the named investigator]. The Mayor told our Office that,although he was at City Hall on May 18, 2013, and did witness thegathering of the three councillors, he did -not participate in anydiscussion with them in relation to the issue.

In finding that the discussion among the three councillors did not constitute ameeting” for the purposes of the MunicipalAct; the office of the Ombudsman stat d

The MunicrpalAc1; 2001 does not create an absolute prohibition againstmembers of council discussing city business outside chambers. As theOmbudsman has noted in previous reports, it is a healthy thing in ademocracy for government officials to share information informallybefore making policy decisions. To expect council members never totalk to one another outside of a public meeting is unrealistic and wouldhave the effect of unnecessarily chilling speech.

Our review determined that three of the eleven council members metprivately on two occasions prior to the May 21, 2013 meeting, toinformally discuss their views on the Auditor's report and the need toretain an independent investigator. There is no evidence to suggestthat a quorum of council was present during these discussions. Ourreview determined that the pre-May 21 private meetings anddiscussions among three members of council were of an informal natureand did not come within the scope of the MunicijoalAc't

The city's representations

[24] All parties made extensive representations. Although this order does not repeatevery one of the parties’ arguments, the parties can be assured that I have read and

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considered their representations in their entirety.

[25]moved

The city advises in its representations that at the open session of the May 212013 city council meeting, which commenced at 6:30 p.m., the following motion was

That the recommendation contained in Report AG-13-09 [the AuditorGeneral's report] be replaced with the following:

Whereas the City's Auditor General has made serious allegations aboutboth individual employees and City departments in Report AG-13-09; and,

Whereas these concerns include issues from 2007 to 2013; and,

Whereas it is critical that these allegations be immediately investigated;

Therefore be it resolved that a full investigation be undertaken by anindependent expert authority with the direction that a comprehensivereport be prepared clearly outlining the findings, conclusions and anyrecommended actions judged necessary in the best interest of theCorporation and the citizens of Oshawa; and,

That the inquiry report be presented as soon as possible in an opensession of Council, subject to applicable law, thereby enabling full publicdisclosure of findings and recommended actions; and,

That in view of his recognition as one of the top authorities inmunicipal law in Canada [the named investigator] be appointed toundertake this investigation; and,

That for the purposes of this investigation so authorized by Council,[the named investigator] shall also have the powers and duties of anIntegrity Commissioner as set out in Sections 223.3 to 223.5 of theMunicipal Act; 2001, as amended, with respect to the subject matter ofhis investigation, including the conduct of employees and officers of theCity; and,

That [the named investigator] be provided with absolute co-operationfrom all staff, including all information, public or confidential, relative tothe allegations or other matters, as he deems necessary to completehis inquiry; and,

That all documents, files, correspondence, voice mail messages, andother records potentially related to this inquiry be preserved; and,

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That the costs of the inquiry be charged to the appropriate account,as determined by the Director, Finance Services/Acting Treasurer; and,

That [the named investigator] commence immediately and present astatus report on his investigation to City Council no later than theCouncil meeting of June 25, 2013; and,

That the Minister of Municipal Affairs, and any other authorities [thenamed investigator] deems appropriate, be advised that thisinvestigation has been committed to and authorized by the Council of theCity of Oshawa.

[26] As stated above, city council passed the motion by a 5-4 vote.

[27] The city submits that, following receipt of the appellant's request for informationunder the Act; and as part of its obligations under the Act, it requested from thenamed councillor copies of all records potentially responsive to the request. Thenamed councillor voluntarily provided a hard copy of the May 21, 2013 email to CityClerk Seniices. The city reviewed the record and determined that it is not subject tosection 4( 1) of the Act because it is not a record "in the custody" or "under the control"of the city.

flre cityfs discussion ofthe factors relevant to determining custody orcontrol

[28] The city refers to St. Elizabetii Home Society v. Hamilton (C7ty),32 cited above,and submits that the named councillor is not an officer or employee of the city. Itsubmits that while a mayor is an officer of a municipal corporation pursuant to section226.1 of the MunicijoalAct, 2001, it is only in "unusual circumstances" that a councilloris considered an officer of a municipality, and therefore part of the institution for thepurposes of the Act” It submits that there are no "unusual circumstances” (such asthe named councillor being appointed a commissioner or overseer of any work for thecity) that would support viewing the named councillor as an officer of the city. Councilhad not assigned any specific responsibility to the named councillor and the namedcouncillor had no express authority to act on behalf of the city in this situation.”

[29] With respect to the use that the named councillor intended to make of therecord, the city states that it can only speculate on its intended use, as the namedcouncillor generated the record in her capacity as an individual constituentrepresentative and not pursuant to a council direction or an assigned responsibility.

[30] The city asserts that interactions between individual councillors and individualmembers of the public are not core, central or basic functions of the city as an

32 Supra.*3 The city refers to order MO-2807.3*‘ The city refers to Order M0-2821.

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institution, but are the personal matters of the individual councillor. It submits thatwhile the city has the authority, when directed by council, to retain an IntegrityCommissioner by virtue of the provisions of the Municipal Act; 2001, the namedcouncillor generated the record in her role as an individual constituent representative.The city submits that the record does not relate to the city's mandate and functions butrather to the independent and personal actions of the named councillor in the contextof her political or personal activities. Therefore, the city submits, the record does notrelate to a "city -matter" in the sense referenced by the Supreme Court ofCanada in NationalDefence.”

[31] As to physical possession of the record, the city acknowledges that the namedcouncillor provided a hard copy of the record to city Clerk Seniices, but submits that sheonly did so in response to Clerk Services‘ request, pursuant to its obligations under theAct; for any records potentially responsive to the access request. She did not do withthe intent that city Clerk Services or any officer or employee would carry out anyactivity in relation to the record. As such, the city submits that it has at most barepossession of the record.

[32] The city also submits that it is relevant that the named councillor generated therecord from a personal email account and that, but for the appellant's request and thenamed councillor's subsequent voluntary provision of the record to the city, the citycould not have obtained the record. As well, the city submits that it has not relied atany time on the record. The record exists solely in hard copy form in a confidential CityClerk Services file opened exclusively in relation to the appellant's request and has notbeen integrated with other records held by the city. The city relies on Order MO-2824where the requester sought access to correspondence and memos relating to tworegistered lobbyists and a named councillor. The adjudicator in that case found thatthe records created and maintained by city councillors were not within the city's custodyor under its control.

[33] With respect to the test articulated in National Defence, 3‘ the city submits thatthe facts in this appeal are analogous to those in Order MO-2842, discussed furtherbelow, where the adjudicator applied the two-part test and found that the city did nothave control over records relating to communications between a named city councillorand outside parties about the possibility of bringing an NFL team to Toronto. The cityalso relies on Order M0-2878, in which the adjudicator found that the city did not havecontrol over councillor e-mails relating to the appellant's property because it had noauthority to compel their production or to othemrise regulate the councillor’s use anddisposal of them. The adjudicator found that the records were the councillor’sconstituency records, and related to his role as an individual constituent representative.

35 Supra.3° Supra.

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[34] In summary, the city reiterates that the named councillor” generated an emailfrom her own personal email account in relation to the ability and availability of theinvestigator to act as an Integrity Commissioner should the matter be raised at counciland should council pass such a direction. The city submits that the named councillor isnot an employee or an officer of the city and generated the record without councildirection or express authority. It submits that council's direction to engage an IntegrityCommissioner does not make the named councillor’s initial personal email a recordunder the custody or control of the city. The council direction to hire the investigatordid not retroactively expressly authorize the named councillor to act on behalf of thecity.

Representations of the named councillor

[35] The councillor who authored the email was notified of this appeal as an affectedparty and made representations. The councillor is in agreement with the city's positionthat the record is not in its custody or control.

[36] The councillor submits that prior to the May 21, 2013 council meeting, during herreview of the materials in preparation for the meeting, she reviewed the AuditorGeneral's Report AG-13-09 and noted some allegations relating to other senior city staffand procedures. In light of the seriousness of those allegations, she spoke with twoother members of council to verify whether their understanding of the report wassimilar to hers. She and the other councillors agreed to reread the Auditor General'sreport and then consider how best to recognize his concerns while ensuring fairnessand respect for all staff in the process.

[37] The councillor explains that the three councillors discussed possible ways toinvestigate l11e allegations. Based on her personal knowledge of the widely-acceptedexpertise of a" particular municipal law specialist and Integrity Commissioner, sherecommended to her two colleagues that she contact that lawyer to explore whetherthe allegations would be something he would consider examining and, considering theurgency of the investigation, whether he could be available immediately.

[38] The councillor submits that her email to the lawyer was sent from her personaliPad, not her city computer, and was not sent using the city's server. She submits thatshe is known for her full preparation for meetings and was working independently, withno authorization or consent from council.

[39] The councillor also submits that once council approved the motion to retain thelawyer as an investigator, the City Clerk was made responsible for all contact with him.The councillor did not see him or speak to him during the investigation, and only madecontact with him at the two open council meetings at which he presented his reports.

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The appellant's representations

[40] The appellant submits that, contrary to the city's position, councillors are“employees” of the city within the definition in the Employment Standards Act andpursuant to by-law 39—2005, which governs remuneration of the city's councillors.

[41] The appellant further submits that following the release of the investigator'sreport, members of council received a copy of a lengthy rebuttal report issued by theAuditor General. Although the city did not make the rebuttal report available to thepublic, the appellant's understanding is that its contents raise serious questions aboutthe investigator's independence, objectivity and competence. The appellant submitsthat the city had an obligation at that point to explore the nature of the investigator'sengagement to ensure that his independence and objectivity had not beencompromised by a personal relationship with the councillor or by virtue of being apartner in a law firm that had been providing significant services to the city for a longperiod of time.

[42] The appellant submits that the named councillor’s communication with theinvestigator was a core, central, or basic function of the city in this case, as shecommunicated on behalf of a group of senior councillors including the Deputy Mayor, asthe Mayor appeared to have a conflict. He submits that the matters discussed betweenthe named councillor and the investigator were central to core functions of the city asthey related to a significant acquisition of real estate for $5.9 million when the AuditorGeneral had apparently determined that the property was worth significantly less. Theappellant submits that it was the Auditor General's report which prompted the namedcouncillor's email to the investigator, and that the details of that email may have had asignificant impact on the purpose and outcome of the investigation that followed. Theappellant submits that the record is an integral part of the hiring of the investigator toinvestigate the Auditor General's allegations, and that his hiring was approved by citycouncil and authorized through a city bylaw.

[43] The appellant submits that rather than acting on her own in contacting theinvestigator, the named councillor was acting with the agreement or encouragement ofthe other two councillors. He submits that in essence, the three councillors were actingas a de recto executive of council officers, and that this is an “unusual circumstance"supporting the view that the named councillor was acting as an officer of the city in thisinstance. He submits that the named councillor commands a great deal of respect fromless experienced councillors, and that this influence is another element of the unusualcircumstances supporting the view that she was acting as an officer of the city.

[44] The appellant also notes that the email was not between a councillor and a cityresident. Rather, he submits that the email was directly related to the city business, asa response to the Auditor General's allegations contained in report AG-13-09. Hesubmits that the councillor enlisted the professional expertise and opinion of the

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investigator to assist with the wording of a motion that was intended to bring about hisengagement by the city.

[45] The appellant further submits that even if the named councillor's iPad was notconnected for use on city servers, she should have known that she was conducting citybusiness on her iPad.

[46] The appellant submits that the motion that was passed by council on May 21,2013 states that all documents, files, correspondence, voice mail messages, and otherrecords potentially related to the inquiry are to be preserved. He submits that thecouncillor's email record is a “document potentially related to this inquiry" and is,therefore, now under the control of the city.

[47] With respect to the Supreme Court of Canada's two-part test for control inNational Defence, the appellant submits:

1. The record relates to a departmental matter, namely it relates to theAuditor General's report, AG 13-09, and the allegations contained within,and the councillor forwarded the draft motion for review by theinvestigator, a motion which ultimately secured his engagement by thecity.

2. The institution can reasonably expect to obtain a copy of the record inquestion upon request, as the named councillor has already provided therecord upon request of the city's Clerk Services department. The namedcouncillor's voluntary release of the document in question shows that thecity can expect, and has obtained the record through a simple request.

[48] Thus, the appellant submits, the two-part test for control is met.

The city's reply representations

[49] In reply, the city reiterated its position as follows:

1. The named councillor, working without express or implieddirection or authority from Oshawa city council, emailed the lawyerto canvas his ability and willingness to act as an IntegrityCommissioner in relation to allegations and concerns raised inReport AG-13-09, but only in the event that Oshawa city councilauthorized same.

2. The councillor generated the email on her own device and did notuse the city's computer server.

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3. The councillor provided a hard copy of the record to city ClerkServices only in response to the city's request pursuant to the'Acr;and but for her voluntary provision of the record, the city couldnot statutorily or contractually compel the named councillor toproduce the record.

4. The councillor, who is neither an employee nor an officer of thecity, created a record, the use or destruction of which the city doesnot govern, without express or implied authority or direction fromCity Council, on her own device not using the city's computerserver. The city's bare possession of the record is notdeterminative of the control issue.

Reply representations of the named councillor

[50] The councillor takes issue with the appellant's allegations about the"Deputy Mayor". She submits that the title was rotated alphabetically, on aquarterly cycle, through all members of council during their term of office. Shesubmits that this simply means that one councillor is designated to stand in for theMayor if he is unable to fulfill his duties. She submits that none of the threecouncillors was representing the Mayor, and denies the appellant's assertion thatthe Mayor had a conflict on the Auditor General's report.

[51] The councillor also denies that she had a "personal relationship" with theinvestigator, noting that she had not seen or talked to him for nine or ten years.She submits that city council debated the appointment at great length, and thenmade the democratic decision to proceed.

[-52] In summary, the named councillor submits:

- Councillors are neither officers nor employees of the city;

o She created the record for her personal use in preparation for a councilmeeting;

- Her actions were not related to the city's power or duty, as she wassimply fulfilling her personal responsibility for preparing for a meeting;

- The institution does not have a right of possession to the record;

o The content of the record does not relate to the institution's mandateand functions;

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0 The institution does not have the authority to regulate the record's useor to dispose of it;

- The record has not been relied upon by the institution;

~ The record is not integrated with other records held by the institution.

Analysis and findings

[53] As noted above, the adjudicator in Order M-813 found that records held bymunicipal councillors may be subject to an access request under the Act in twosituations:

- Where a councillor is acting as an “officer” -or “employee” of themunicipality, or is discharging a special duty assigned by council, suchthat they may be considered part of the institution; or

~ Where, even if the above circumstances do not apply, the councillor'srecords are in the custody or under the control of the municipality on thebasis of established principles.

[54] I begin, therefore, by considering whether councillor was acting as an officer oremployee of the city when she created the record.

Was the record createdbyan officer or employee ofthe institution?

[55] I find that the named councillor is not an employee of the city. The court statedin St. Elizabeth Home Society v. Hamilton (City)37 that an elected member of amunicipal council is not an agent or employee of the municipal corporation in any legalsense. The appellant appears to assume that because city councillors receive theirremuneration from the city, they are employees of the city. However, in law, there aremany working relationships other than that of employer and employee.

[56] In Order M-813, the adjudicator concluded that only in “unusual circumstances"is a councillor considered an officer of a municipality and therefore. part of theinstitution for the purposes of the Act; I agree with the city's submission that there areno "unusual circumstances" present in this appeal such that the councillor should beconsidered an officer of the city. I do not have any evidence before me that councilhad assigned any specific responsibility to the named councillor to act on behalf of thecity in exploring the availability of the investigator to undertake an investigation onbehalf of the city.

37 Supra.

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[57] I reject the appellant's submission that the three councillors were acting as a defacto executive of council "officers", and that this is an unusual circumstance supportingthe view that the named councillor was acting as an officer of the city in this instance.The fact that the named councillor is respected by less experienced councillors may ormay not have influenced the other two councillors to agree that contacting theinvestigator was an appropriate action to take, but does not change the fact that shewas not acting on behalf of the city or with the city's express authority. TheOmbudsman found that the three councillors informally discussed their views on theAuditor General's report and the need to retain an independent investigator, and thatno quorum of council was present during these discussions. The evidence before me isconsistent with those conclusions. I also reject the appellant's arguments that thepresence of the Deputy Mayor during the discussions constitutes an unusualcircumstance supporting the view that the named councillor was acting as an officer ofthe city.

[58] In support of his argument that the three councillors were acting as a de facto“executive”, the appellant has submitted evidence of the voting patterns of the threecouncillors. However, I do not accept that the fact that these councillors may havetended to vote alike constitutes an “unusual circumstance” such that the namedcouncillor should be considered an officer of the city.

[59] Since the councillor was not acting as an employee or officer of the city at thetime in question, she is not, in the circumstances, considered to be part of the city.However, that does not end the analysis of whether the record at issue is in the controlof the city and therefore subject to the Act I must now consider whether the record isin the custody or under the control of the city on the basis of established principles.

Is the record in the custody or under the control of the municipality on thebasis ofestablishedprinciples?

Previous orders applying the factors in determining custody and control of council/orcommunications

[60] Several previous orders of this office, some of which the city relies on, haveconsidered the factors set out above and have found that city councillors’communications were not in the custody or under the control of the city in thecircumstances of those appeals.”

[61] In Order MO-2821, the question was whether communications between City ofToronto councillors about cycling issues were under the control of the city. Theadjudicator found that, although it was arguable that the records met the first part ofthe two-part test articulated by the Supreme Court of Canada, because they related to

38 See Orders MO-2821, MO-2878, MO-2749, MO-2610, MO-2342 and MO-2824.

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a “city matter", the second part of the test was not satisfied. In finding that the citycould not reasonably be expected to obtain the records on request, the adjudicatorrelied on the following factors:

- although the councillors were members of a city committee, therecords do not relate to the discharge of any special authority to act onbehalf of the city with respect to the work of the committee orothenvvise;

~ the records were not fonrvarded to city staff and were not integratedwith city records; and

~ the city did not assert any authority over the content, use or disposalof the records.

[62] The adjudicatoralso commented as follows on the nature of the records that areheld by municipal councillors:

Before concluding, I wish to address the question of “constituency”records. The parties made reference to this description of councillorrecords, as prior decisions of this office have found councillors’constituency records to be excluded from the Act. One of the factors theappellant relied on in her Appeal Form is that the reoords do not involveany individual constituent. She suggests, therefore, that the records musttherefore be “city records."

Although the distinction between “constituency records” and “city records”is one framework for determining custody or control issues, it does notfully address the activities of municipal councillors as electedrepresentatives or, as described in St. E//'zabetf1 Home Society, above,“legislative officers." Records held by councillors may well include“constituency reoords” in the sense of having to do with an issue relatingto a constituent. But they may also include communications with personsor organizations, including other councillors, about matters that do notrelate specifically to issues in a oouncillofs ward and that arise moregenerally out of a councillor's activities as an elected representative.

The councillors have described such records as “personal” records but itmay also be appropriate to call them “political” records. In any event, it isconsistent with the scheme and purposes of the Act; and its provincialequivalent, that such reoords are not generally subject to accessrequests. In National Defence, the Court stated that the “policy rationalefor excluding the Ministefs office altogether from the definition of“government institution" can be found in the need for a private space toallow for the full and frank discussion of issues" and agreed with thesubmission that “[i]t is the process of being able to deal with the distinct

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types of information, including information that involves politicalconsiderations, rather than the specific contents of the records" thatParliament sought to protect by not extending the right of access to theMinister's office.

The policy rationale applies with arguably greater force in the case ofcouncillors who, unlike Ministers, do not have responsibility for agovernment department and are more like MPP's or MP'$ without aportfolio. A conclusion that political records of councillors (subject to afinding of custody or control on the basis of specific facts) are not coveredby the Act does not detract from the goals of the Act A finding that thecity, as an institution covered by the Act, is not synonymous with itselected representatives, is consistent with the nature and structure of thepolitical process. In arriving at this result, I acknowledge that there isalso a public interest in the activities of elected representatives, and mydeterminations do not affect other transparency or accountabilitymechanisms available with respect to those activities.

[63] In Order MO-2842, the appellant requested records relating to communicationsbetween a named city councillor and outside parties about the possibility of bringing anNFL team to Toronto. The city took the position that any records in the possession ofthe named councillor that may exist are not within the city's custody or control.Applying the test in National Defence, the adjudicator in that case found that even ifthe records could arguably relate to a "departmental or city matter", the city did nothave the authority to regulate their use or content and could not reasonably beexpected to obtain a copy of them upon request. The adjudicator found that therecords related to the councillor's role as an individual constituent representative andwere in the nature of “political” rather than “city” records.

[64] In Order MO-2749, the adjudicator stated:

Under section 4(1), the Act applies only to records that are in the custodyor under the control of an institution. This office has recognized thatmunicipal councillors perform both “constituency” functions, and officialresponsibilities as members of municipal council. When performingconstituency work, past decisions have established that councillors are not“officers” and, accordingly, records related to their constituency work isnot in the custody or control of an institution. However, records that ariseout of the councillor's official responsibilities as a member of council orsome aspect of council's mandate would be subject to the Act

[65] As a result, the adjudicator found that email correspondence with a named citycouncillor about a laneway closing was in the custody or under the oontrol of the city.

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Factors relevant to determining "custody or c0ntTo/”/ Two-part test in National Defence

[66] I will now consider the factors relevant to determining “custody or control". Iwill do so in the context of the two-part test of the Supreme Court of Canada, referredto by both the city and the appellant. As noted above, in National Defence,” theSupreme Court of Canada adopted the following two-part test on the question ofwhether an institution has control of records that are not in its physical possession:

(1) Do the contents of the document relate to a departmental matter?

(2) Could the government institution reasonably expect to obtain acopy of the document upon request?

[67] Before continuing, I acknowledge that the city has physical possession of therecord. However, I accept the city's submission that this is only because it asked thecouncillor for it to prepare its response to the appellant's access request under the Act:For the purposes of my analysis, therefore, I will assume that the city's current physicalpossession of the record amounts to “bare possession” only.

[68] In its discussion of the concept of “control” for the purposes of freedom ofinformation legislation, the majority in National Defence stated:

As “control” is not a defined term in the Act; it should be given its ordinaryand popular meaning. Further, in order to create a meaningful right ofaccess to government information, it should be given a broad and liberalinterpretation. Had Parliament intended to restrict the notion of control tothe power to dispose or to get rid of the documents in question, it couldhave done so. It has not. In reaching a finding of whether records are“under the control of a government institution", courts have considered“ultimate” control as well as “immediate” control, “partial” as well as “full”control, “transient” as well as “lasting" control, and “de jure” as well as“de facto" control. While “control” is to be given its broadest possiblemeaning, it cannot be stretched beyond reason. Courts can determine themeaning of a word such as “control” with the aid of dictionaries. TheCanadian Oxford Dictionary defines “control” as “the power of directing,command (under the control of)" (2001, at p. 307). In this case, “control”means that a senior official with the government institution (other thanthe Minister) has some power of direction or command over a document,even if it is only on a “partial" basis, a “transient” basis, or a “de facto”basis. The contents of the records and the circumstances in which theycame into being are relevant to determine whether they are under the

3° Supra.

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control of a government institution for the purposes of disclosure underthe Act.‘°

[69] The Court also stated:

Under step two, all relevant factors must be considered in order todetermine whether the government institution could reasonably expect toobtain a copy upon request. These factors include the substantivecontent of the record, the circumstances in which it was created, and thelegal relationship between the government institution and the recordholder. The Commissioner is correct in saying that any expectation toobtain a copy of the record cannot be based on “past practices andprevalent expectations" that bear no relationship on the nature andcontents of the record, on the actual legal relationship between thegovernment institution and the record holder, or on practices intended toavoid the application of the Access to Infonnation Act... The reasonableexpectation test is objective. If a senior official of the governmentinstitution, based on all relevant factors, reasonably should be able toobtain a copy of the record, the test is made out and the record must bedisclosed, unless it is subject to any specific statutory exemption. Inapplying the test, the word “could” is to be understood accordingly.“

[70] I now turn to each element of the two-part test.

1) Do_the contents of the record relate to a city matter?

[71] The record's content relates to the hiring of an investigator to review allegationsmade about individual city employees and city departments by the city's AuditorGeneral in Report AG-13-09. In its representations, the city submits that it has theauthority, when directed by council, to retain an investigator. I agree. I also agreewith the appellant that the creation of the record at issue played an integral part incouncil's decision to retain the investigator in this case.

[72] I find, therefore, that the record relates to a city matter.

2) Could the city reasonably expect topbtain a copy of the documentupon @uest?

[73] For the reasons below, I find that the city could reasonably expect to obtain acopy of the record upon request.

"° Ibidat para 48."1 [bidat para 56.

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[74] I place considerable weight on the circumstances surrounding the creation anduse of the record. According to the Ombudsman's letter, which is consistent with therepresentations of the city and those of the councillor, the latter emailed theinvestigator to provide him with the opportunity to identify any problems with thelanguage in a draft copy of the proposed motion. The councillor submits that sheemailed the investigator as part of her preparation for a council- meeting. While Iaccept that this is the case, I also note that this part of her preparation involved settlingon the terms of the investigator's potential engagement by the city. The motion thatcouncil passed, and which is reproduced above, not only proposes hiring aninvestigator, but names the investigator and contains detail about the scope of hiswork, and the timelines for same.

[75] The city submits that the record does not relate to its mandate and functions butrather to the independent and personal actions of the councillor in the context of herpersonal or political activities. It submits that the councillor's interaction with theinvestigator was a personal matter, and not a core function of the city. I disagree. Therecord contains, in effect, negotiations between the councillor and the investigatorrelating to the city's potential hiring of him. This relates directly to the city's mandateand functions.

[76] The city argues that the named councillor did not have the authority to bind theinstitution when she emailed the investigator for his feedback on the draft motion. Asnoted in the Ombudsman's report, the pre-May 21 private meetings and discussionsamong three members of council were of an informal nature and did not come withinthe scope of the MUfliGP5/Act. I agree that the councillor did not have council approvalto hire the investigator. However, this alone is not determinative. The councillor’semail to the investigator, sent mere hours before the council meeting at which themotion to retain him was passed, was an integral part of the hiring of the investigator.

[77] With respect to the use that the named councillor intended to make of therecord, the city states that it can only speculate on the intended use as the namedcouncillor generated the record in her capacity as an individual "constituentrepresentative" and not pursuant to a council direction or assigned responsibility.However, it is clear from the uncontroverted background facts that the councillor usedthe record in order to confirm the investigator's agreement to the terms of his potentialengagement by the city.

[78] I have also considered the extent to which the city has relied upon the record.The councillor's email asked for the investigatofs feedback on a draft motion. The finalmotion, as reproduced above, contains detailed information about the terms of theinvestigator's engagement by the city. In other words, the councillor laid thegroundwork for the city's decision to engage the investigator and the terms upon whichit did so. The city submits that it has not relied on the record. While I accept the city'sstatement that the record has not been integrated with other records held by it, I find

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that its creation played a significant role in council's decision to hire the investigator inthe vote that took place later that day. In this respect, the city relied on the record inorder to secure the engagement of the investigator, on the terms outlined in the finalmotion.

[79] Given these circumstances, I find that the city could reasonably expect to obtaina copy of the record from the councillor upon request. I find it unlikely that thecouncillor would refuse to provide it, given its particularly close nexus to council'sdecision to hire the investigator and the terms upon which he was hired.

[80] I do not have any specific information before me about the city's authority toregulate the record's content, use and disposal. However, in National Defence, theSupreme Court found that in order to create a meaningful right of access togovernment information, “control” should be given a broad and liberal interpretation.The Court further noted that, had Parliament intended to restrict the notion of controlto the power to dispose or to get rid of the documents in question, it could have doneso. It has not.

[81] I find that the same reasoning applies in the context of the Act While the powerto dispose of the record at issue would be one factor tending to establish institutionalcontrol over the record, the absence of such a power does not automatically lead to afinding that the institution could not reasonably expect to obtain a copy of it. As notedby the Supreme Court, all relevant factors must be considered in order to determinewhether the government institution could reasonably expect to obtain a copy uponrequest. These factors include not only the legal relationship between the governmentinstitution and the record holder but also the substantive content of the record and thecircumstances in which it was created. I find the latter factors of utmost importance inthis appeal. The Supreme Court states that “control” means that a senior official withthe government institution has some power of direction or command over a document,even if it is only on a partial basis, a transient basis, or a de facto basis. Given thecontent of the record and the circumstances under which it was created, I find that asenior official of the city would assert control over the record if, for example, there wereever any question about the negotiations that led to the investigator's retainer, and thatthe official could reasonably expect the councillor to provide the record to the city, ifrequested to do so.

[82] The city argues that it could not legally compel the councillor to provide therecord. The parties did not refer me to any contracts, codes of conduct or policies thatexpressly or by implication give the city the legal right to possess or othenrvise controlthe record, which was sent from the councillor’s personal iPad. The Supreme Court hasstated, however, that de facto (as opposed to dejure) control is recognized as control.Although a councillor is not considered to be part of the city for the purposes of the Actneither is a councillor a stranger to the city; both are governed by the Municljoal ActGiven this fact and particularly the very close nexus between the email and the terms

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upon which the city hired the investigator, I find that a senior “city official couldreasonably expect the councillor to voluntarily provide the record to the city.

[83] I acknowledge that, as discussed above, many previous orders of this office havefound that records created by city councillors are not in the control of the city.However, determining custody and control is a contextual exercise. None of the ordersinvolved facts similar to those before me. Perhaps the closest parallels can be drawnbetween the facts in this appeal and those in Order MO-2842. Like the record in thisappeal, the records in that appeal concemed councillor communications with a thirdparty who was not a constituent. Those communications were for the purpose ofexploring the possibility of bringing an NFL team to Toronto. The adjudicator in thatcase found that the records related to the councillor's role as an individual constituentrepresentative and were in the nature of “political” rather than “city” records.

[84] However, there are important differences between the facts in Order MO-2842and those in the present appeal. In Order MO-2842, the records (if they existed)related to a city matter that was speculative or hypothetical. In the present appeal,while the hiring of the investigator was contingent on a vote of council members, thatvote was imminent. Moreover, the councillor’s email played a crucial role in thenegotiations resulting in the hiring of the investigator.

[85] Another significant difference, in my view, is the fact that, unlike in Order MO-2842, the record in this appeal relates to an agreement that materialized. Mere hoursafter the councillor sent the email, council made the decision to hire the investigator.While my conclusion may have been different had the motion not passed, that fact isthat it did pass. In my view, this is a significant factor supporting a conclusion that therecord, containing the councillor's negotiations with the investigator, is a “city” record,not a “political" record.

[86] I have not placed any weight on the appellant's argument that the record is a“document potentially reiated to this inquiry" within the meaning of the language in themotion. In my view, this language refers to documents relating to the events to beinvestigated, not documents relating to the investigation itself.

[87] I conclude, therefore, that the city could reasonably expect to obtain a copy ofthe record upon request. Therefore, the two-part test in National Defence is met, andthe record at issue is a record under the control of the city within the meaning ofsection 4(1) of the Act

[88] Finally, I reach the same conclusion if I consider the list of factors developed bythis office, outside of the two-part test articulated in National Defence. Weighing theabove factors contextually in light of the purpose of the Act; and for the above reasons,I find that the record is under the city's control.

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ORDER:

1. I find that the record at issue is under the city's control within the meaning ofsection 4(1) of the Act

2. I order the city to issue a decision letter to the appellant regarding access to therecord at issue in accordance with the provisions of the Act treating the date ofthis Order as the date of the request.

Original Signed By: January 22, 2016Gillian ShawAdjudicator

P. 0. Box 84, 2 Mille Roches Road- Long Saulf, ON KOC IPOTownshlp of Tel: (613) 534-8889 Fax: (613) 534-2280

E-mail: 1'njb@s0uthstorm0m‘. ca

Community Services (CS) CommitteeThe FOURTH MeetingAugust 11, 2014

The fourth meeting of the Community Services (CS) Committee was

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11, 2014 at 9:00 AM at the St. Andrews West Fire Hall. ,_-_, fPresent: Chair Richard Waldroff, CSC members Deputy Mayorgg CouncillorBrownlee and staff members CAO Betty de Haan, Publrc Works Ma ger (PWM) RossGellately, Acting Fire Chief (AFC) Paul Wheeler and Clerk Loriann Harbers.

Confirmation of Agenda

Disclosure of Pecuniary Interest - nil.

Delegations / Petitions— nil.

Motions

Resolution No. CS-22-2014 Minutes of]June 9, 2014Moved by Councillor Brownlee, Seconded by Deputy Mayor Hart

Be it resolved that the minutes of the June 9, 2014 Community ServicesCommittee be adopted as circulated.

Ca rried.

Report No. PW]-24-2014. Sidewalk Snow Clearing PolicyPWM Gellately provided an overview of the report and recommendation aspresented. Discussion included liability and costs. Members requested a report atyear end that will demonstrate how much repair work has taken place in 2014 withthe budgeted amount of $15,000.

Resolution No. CS-2,3-2014 Sidewalk SnowfilearingjolicyMoved by Deputy Mayor Hart, Seconded by Councillor Brownlee

Be it resolved that the Community Services Committee recommends to Councilthat the recommendation presented in Report No. PW-24-2014, authorizing thedevelopment of a sidewalk snow clearing policy, be accepted.

Carried.

Winter Maintenance Budget Update: Newington Sidewalk Snow Clearing PlowingPWM Gellately provided an overview of the information presented advising of ashortfall of $40,000 in the 2014 winter maintenance budget due to the vast amountof snow in the spring. In addition, members discussed requests received forsidewalk snow clearing in Newington.

Community Services CommitteeAugust 11, 2014Page 2

Item of discussion include:o Approximate cost to clear the requested sidewalk is $3,420;0 Does the request meet the criteria established in the proposed sidewalk snow

clearing policy? Yes, it is on an arterial road; and- Placement of sidewalk directly adjacent to roadway causing the snow to be

directed onto private properties. This is also the case in alternate locations inthe Township, i.e. Lunenburg, County Road No. 44.

As a result of discussion, the following motion was passed:

Resolution No. CS-24-2014 Winter Maintenance Budget and Newington SidewalkSnow ClearingMoved by Deputy Mayor Hart, Seconded by Councillor Brownlee

Be it resolved that the Community Services Committee receives the KeyInformation Report concerning the Winter Maintenance Budget; Newington SidewalkKnow Plowing and furthermore, that staff prepare and distribute a survey andinformation package to the residents fronting on the sidewalk that is proposed to becleared.

Carried.Discussion

Roadside Mowing ProgramPWM Gellately provided an update on the 2014 roadside mowing program. Heexplained that there were delays at the onset of the new contract and that alternateequipment was used. Nonetheless, mowing is being completed earlier than in recentyears and the mowing is cleaner as a result of the alternate equipment.

Moulinette Island,SurveyMembers were advised that the St. Lawrence Parks Commission Board was advisedof the Moulinette Island Servicing Study at their July meeting; however, discussionwill not take place until September.

When a partnership can be confirmed with the St. Lawrence Parks Commission, theStudy will be forwarded to the Township's Planning Consultant, JL Richards toproceed with the development of a detailed plan for future.

Future St. Andrews West_Fire HallAFC Wheeler provided an overview of the potential project. Plans of a neighbouringfire hall (Martintown) were circulated as a sample of what could be. Membersreviewed anticipated costs and budget consideration for the project. Discussion alsoincluded a community hall, what groups would use a community hall, the RecreationMaster Plan and partnering with the Knights of Columbus to operate a hall.

Community Services CommitteeAugust 11, 2014Page 3

Resolution No. CS-25-2014,St. Andrews West Fire HallMoved by Deputy Mayor Hart, Seconded by Councillor Brownlee

Be it resolved that the Community Services Committee recommends to Councilthat price quotes be obtained to complete a topographical survey and geotechnicalinvestigation for the proposed St. Andrews West Fire Hall construction project; andfurthermore that staff proceed in this regard with the best quotes.

Carried.Capital Project UpdateMembers were provided with a status update of 2014 capital projects.

New Business — nil.

Next Meeting: to be determined.

Adjournment

Resolution No. CS-26-2014 -AdjournmentMoved by Councillor Brownlee, Seconded by Deputy Mayor Hart

Be it resolved that the Community Services Committee adjourn this meeting at10:46 AM, and return to the call of the chair.

Ca rried.

Chair Recording Secretary

** Following the meeting, members visited the site of the future St. Andrews WestFire Hall, just south east of the existing fire hall.

P. 0. Box 84, 2 Mille Roches Road0- 1. s It. 01v1<0c 11>

Townshlp of Tel: (613) 534.88§ZgF.§'Z-‘ (613) 534-2280E-mail: infiJ@s0uthstorm0nt.ca

Planning and Building_(P&B) CommitteeThe FOURTH MeetinqSeptember 2, 2014

XThe fourth meeting of the Planning and Building (P&B) Commit gflel onSeptember 2, 2014 at 4:30 PM at South Stormont Town Hall. 5 ‘

Present: Chair Mayor McGiIlis, P&B Committee members Deputy Mayor Hart,Councillor Woods and staff members CAO Betty de Haan, Manager of Building andDevelopment Hilton Cryderman, Planning Technician Stephanie Liscomb, PublicWorks Manager Ross Gellately, Fire Chief Crepeau, Deputy Fire Chief Wheeler andDirector of Corporate Services/Clerk Loriann Harbers.

Confirmation of AgendaMembers were advised of the addition of a request from Jim Winters concerning thecost to purchase a Township road allowance.

Disclosure of Pecuniary Interest - nil

DelegationManager Myles Cassidy, Emergency Medical ServicesMr. Cassidy was in attendance to discuss the rationale and specifications for theproposed Emergency Medical Service Ambulance Post in South Stormont.FC Crepeau and DFC Wheeler departed.Discussion / MotionsResolution No. P&B—16-2014 Minutes ,of_May 13, 2014Moved by Deputy Mayor Hart, Seconded by Councillor Woods

Be it resolved that the minutes of May 13, 2014 be adopted as circulated.

Carried.

Keyjnformation Report; Uncommitted Res,erve,Capacity ReportPWM Gellately provided an overview of the report and explained the options to beconsidered to address the capacity restrictions in Ingleside.

Resolution No. P&B—17-2014 Uncommitted Reserve CapacityMoved by Deputy Mayor Hart, Seconded by Councillor Woods

Be it resolved that the Planning and Building Committee recommends toCouncil that the Key Information Report explaining the Uncommitted ReserveCapacity Report for Long Sault Ingleside Water Treatment Plant, Long SaultWastewater Treatment Plant and Ingleside Wastewater Treatment Plant be receivedfor information purposes.

Carried.

Planning & Building CommitteeSeptember 2, 2014Page 2

PWM Gellately departed.

Key Information Report: Community Improvement Plan Application(s1Planning Technician Liscomb provide an overview of each application explainingwhat the requested funds would be used for and the benefits associated. CAO deHaan explained that the original plan suggested the evaluation committee include amember of the Chamber of Commerce. A Chamber member will be invited toparticipate in future.

Resolution No. P&B—18-2014 Comm.uni,tV Improvement ApplicationsMoved by Councillor Woods, Seconded by Deputy Mayor Hart

Be it resolved that the Planning and Building Committee reviewed the KeyInformation Report summarizing Community Improvement Plan applicationsreceived and therefore recommends that Council support the following grantrequests:

Application No. CIP—2014-02, Program 1, Stream A - $1,651Application No. CIP-2014-03, Program 1, Stream B - $20,000Application No. CIP-2014-04, Program 1, Stream A — $1,651Application No. CIP-2014-05, Program 1, Stream B - $20,000

o Application No. CIP-2014-O6, Program 1, Stream A - $6,298Furthermore, that the required documents be prepared.

Carried.

Resolution No. P&B7l9-2014 Move into a Closed MeetingMoved by Deputy Mayor Hart, Seconded by Councillor Woods

Be it resolved that the Planning and Building Committee, as provided in Section239 (2) of the Municipal Act, 2001 move into a closed meeting at 4:35 p.m. toaddress a matter pertaining to a proposed or pending acquisition or disposition ofland by the municipality or local board, specifically: proposed disposition of land.

Carried.

Resolution No. P&-B-—-20-20 14 Move out of a Closed MeetingMoved by Deputy Mayor Hart, Seconded by Councillor Woods

Be it resolved that the Planning and Building Committee move out of this closedmeeting at 6:40 p.m.

Carried.Resolution No. P&B—21-20.14 EMS Ambulance PostMoved by Deputy Mayor Hart, Seconded by Councillor Woods

Be it resolved that staff proceed with clarifying items regarding the appraisal asreceived, for the proposed EMS property and further, this information come forwardto Council for further direction.

Carried.MBD Cryderman and PT Liscomb departed.

Planning & Building CommitteeSeptember 2, 2014Page 3

Correspondence

Members discussed the request from Jim Winters to waive the cost to purchase aTownship road allowance.

Resolution No. ,P&_B—22-2,014 - Road Alloyrance Sale and ClosureMoved by Councillor Woods, Seconded by Deputy Mayor Hart

Be it resolved that the Planning and Building Committee recommends to Councilthat due to extenuating circumstances, the requirement to pay $750 per acre forroad closure and sale for Jim Winters be waived.

Carried.Adjournment

Resolution No. P&B—23~201fl — AdjournmentMoved by Councillor Woods, Seconded by Deputy Mayor Hart

Be it resolved that the Planning and Building Committee adjourn this meeting at6:55 PM, and return to the call of the chair.

Carried.

Chair Recording Secretary

P. O. Box 84, 2 Mille Roches RoadLong Sault, ONKOC IPOTownship of Tel: (613) 534-8889 Fax: (613)534-2280E-mail: 1'nfo@s0uthst0rm0nt.ca

Finance, Administration and Human Resources (’fA&HRf)”Commit:l;ee : W

Ogjgber 20, 2Q 14The Finance, Administration and Human Resources (FA&HR) Committee held a m ' "October 20, 2014 at 4:30 P.M. at the South Stormont Town Hall.

\'

The Ninth Meeting

Present: Chair Councillor Woods, FA&HR members Mayor McGillis and Councillor droff, staffmembers CAO Betty de Haan, Manager of Building and Development Hilton Cryderman,Planning Technician Stephanie Liscomb and Director of Corporate Services/Clerk LoriannHarbers.

Confirmation of Agenda

Disclosure of Pecuniary Interest — nil

Discussion / Motions

MinutesResolution No. FA&HR—41-2014 - MinutesMoved by Councillor Waldroff, Seconded by Mayor McGillis

Be it resolved that the minutes of the September 3, 2014 meeting be adopted ascirculated.

Carried.Closed Session: PersonalResolution No. FA&HR—42-201,4 — Move into a Closed MeetingMoved by Mayor McGillis, Seconded by Councillor Waldroff

Be it resolved that the FA&HR Committee as provided in Section 239 (2) of the MunicipalAct, 2001 move into a closed meeting at 4:40 P.M. to address a matter pertaining to: personalmatters about an identifiable individual, including municipal or local board employees;specifically: Personal.

Carried.

Resolution No. _FA&ljl_R-43-2014 - Move out of Closed MeetingMoved by Mayor McGillis, Seconded by Councillor Waldroff

Be it resolved that the Finance, Administration and Human Resources Committee moveout of this closed meeting at 6:46 pm.

Carried.

Resolution N0. FA&HR-44-2014 - AdjournMoved by Councillor Waldroff, Seconded by Mayor McGillis

Be it resolved that the Finance, Administration and Human Resources Committee adjournthis meeting at 6:47 pm, and return to the call of the chair.

Carried.

Chair Clerk