November 22nd Ajax Staff Report- AS TEXT - Ombudsman Issue
I was sent an email with the Staff Report that I say is incomplete and inaccurate in Text Format this morning in my other email. I only opened it about 30 mins ago- 11:00 pm March 11th 2008.
I read it and could not find any difference from the Original at the Town site but I did not read it word for word side by side. I was sent this with no comments from the sender all commentary below is mine– as usual.
Here is a link to the report on the Town of Ajax website. If you read both and do find a difference let me know.
This is a straight paste, lots of spaces.
What this report shows is the Staff recommending Local Authority Service and the by-law that needs to be passed attached.
What you will read is the details of the Bill 130 and the positions that are optional for a Municipality to appoint. The only appointment that had to be made was a closed meeting investigator. Integrity Commissioner, Ombudsman and others are not mandatory.
If the Town of Ajax was able to appoint an Ombudsman I would hope they would conduct the process similar to the USA- Senate Confirmation hearings. Meaning the people that want you there the least are the ones you have to win over to prove you are worthy.
This report does not contain confirmed information the Ontario Ombudsman office would do if a complaint came to them but instead contains speculation with no factual information at all.
Due Dilligence has not been done. Judge for yourself. If you do not understand the issue please ask or email and I will explain it to you as best I can. Many do not understand this issue at all and I am at a loss how to explain this other then saying the Town of Ajax wants you to have less rights as a citizen if you have a complaint about closed door meetings.
Local Authority Services is part of the AMO , it is not a 3rd party company, There is no Arm’s length relationship at all. Municipal World is a Small Town!
LAS– Charge to Ajax: $600.00 for 2 years, $1,250.00 per day for investigation plus all applicable taxes, will be charged to the municipality plus all legal fees and reasonable expenses incurred during the course of an investigation.
Ajax charge to Citizen: $125.00 with $100.00 return if complaint legitimate.
Ombudsman– $0.00 has been for years and no base for assumption of an increase. This is for both Citizen and Municipality.
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http://www.townofajax.com/AssetFactory.aspx?did=3914
LAS text from the PDF
Sent: March 11, 2008 8:42:53 AM
To: voicesofajax@hotmail.com’ (voicesofajax@hotmail.com)
TOWN OF AJAX
REPORT
Report To:
Submitted By:
Prepared By:
Subject:
Ward(s):
Date of Meeting:
Reference:
General Government Committee
Martin de Rond
Director of Legislative and Information Services / Town Clerk
Blair Labelle
Manager of Legislative Services / Deputy Clerk
Municipal Act, 2001 Discretionary Appointments
All
November 22, 2007
GGC Report - February 21, 2007
Recommendation:
WHEREAS effective January 1, 2008, Section 239.1 of the Municipal Act, 2001, as amended, 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 may be undertaken by an Investigator
appointed by the municipality pursuant to Sections 9, 10, 11, and 239.2 of the Act;
BE IT RESOLVED THAT the Town of Ajax implement by way of By-law a Closed Meeting
Investigation Request Process (attached as Appendix A of this report);
THAT the Town implement by way of By-law (attached as Appendix B of this report) the
appointment of Local Authority Services Ltd. (LAS) as its independent Closed Meeting Investigator
and enter into a contract service agreement with LAS (attached as Schedule 1, Appendix B of this
report) for a Two year term effective January 1, 2008 for investigation services as it relates to any
‘closed meetings’ of the Town of Ajax Council and/or standing committee; and,
THAT staff report to the General Government Committee in the Fall of 2008 with an update on the
actions taken in other Ontario municipalities with respect to the potential appointment of additional
integrity officers in the Town of Ajax.
Background:
As reported at the February 21, 2007 meeting of the General Government Committee, The Municipal Act
2001 (the “Act”) has been amended by The Municipal Statute Law Amendment Act, 2006 (Bill 130) in an
attempt to provide municipalities with greater flexibility to fulfill their responsibilities as well as to place a
greater emphasis on the transparency and accountability of local governance.
Along with several statutory policy initiatives in which options will be reported to at a forthcoming meeting
of the General Government Committee, the Act provides municipalities with the option of appointing
several positions to reinforce the recent amendments to the Act by Bill 130. Part V.1 of the Act authorizes
municipalities to appoint the following integrity officers at their discretion:
Subject: Bill 130 Discretionary Appointments
Page 2
1. Closed Meeting Investigator
2. Integrity Commissioner
3. Auditor General
4. Lobbyist Registrar
5. Ombudsman
Discussion:
Closed Meeting Investigator
As of January 1, 2008 any person will have the ability to request a review of the procedures of any closed
meeting of Council or committee. The Town is required to have a mechanism in place by this deadline for
the purpose of investigating whether the meeting was in compliance with Section 239 of the Act as well
as the Town’s Procedure By-law. The Town has the option to appoint an impartial investigator of their
preference or to contract Local Authority Services Ltd. (LAS), a wholly-owned subsidiary of the Association
of Municipalities of Ontario, to provide an investigator on an as needed basis. If a decision is not made by
January 1, 2008 the Provincial Ombudsman will be deemed to have jurisdiction in the matter of closed
meeting investigation requests until such time that an appointment is made.
Several municipalities of interest including Durham Region, Markham, Whitby, Clarington, Sarnia, Oakville,
Caledon and Whitchurch Stouffville have contracted, or are in the process of recommending a contract,
to retain the services of LAS. Conversely, smaller municipalities such as Muskoka, Peterborough, and
Killaloe have appointed one individual to serve as an investigator for all adjacent municipalities. At the time
of this report, very few municipalities are planning to utilize the office of the Provincial Ombudsman for
closed meeting investigations.
If the Town decides to appoint an individual of their preference to conduct closed meeting investigations,
Council must have regard to the investigator’s independence and impartiality, confidentiality with respect
to investigator’s activities, and credibility relating to the investigative process. Outside of these legislative
requirements, the preferred candidate should also possess an extensive knowledge of municipal
government, Council policies and related procedures, and an in-depth comprehension of the Municipal Act
and related statutes. To ensure impartiality, it is recommended that this individual not have any past or
present affiliation with the Corporation or individual Councillors.
If an appointment of a closed meeting Investigator is not made by January 1, 2008, the Provincial
Ombudsman is appointed by default. The investigation service led by the Provincial Ombudsman’s office
would be carried out at no cost to the municipality and would follow a well defined complaints investigation
process. Although a designated officer from the Province would be guided by a comprehensive
investigation process, many suggest that it may not be relevant when applied to the ‘municipal context’.
Provincial appointees may not have an appreciation for the degree in which municipalities conduct their
affairs in the full view of the public.
The City of Pickering and the City of Oshawa have both decided to utilize the services of the Provincial
Ombudsman. Oshawa established a Sub-Committee of Council to investigate the options of appointing
a closed meeting investigator and Pickering convened a Task Force on Accountability comprised of
Councillors, staff and community leaders. Both advisory groups indicated that the Ombudsman was the
preferred option because it would be at ‘arms length’ from the municipality and would have no associated
costs. Both recommendations are still yet to be ratified by Council. Although the Provincial Ombudsman
would provide its services at no cost, there are still too many outstanding questions with respect to the
manner in which it will undertake its investigation process when engaged.
Subject: Bill 130 Discretionary Appointments
Page 3
Staff recommends that LAS be retained to provide a closed meeting investigation services for the Town
of Ajax. It is the intent of LAS to delegate its authority to a third party company, Amberley Gavel Ltd.
Proprietors (owned by Nigel Bellchamber and Fred Dean), established solely to assist municipalities in
fulfilling the requirements of the Act related to ‘closed meetings’. All review officers made available through
LAS will have the necessary understanding of the municipal environment to conduct their investigation in
an accurate and expeditious manner with very little disruption to the ongoing operations of the municipality.
LAS Review Officers are required to participate in training regarding municipal meeting and investigative
process. Although the Review Officers are located geographically around the Province, a comprehensive
list will be made available to program members. LAS will also provide the Town with ongoing educational
information related to ‘closed meeting’ provisions of the Act and direct access to all completed reports via
a password protected website.
Integrity Commissioner
As part of the discretionary accountability and transparency tools provided in Bill 130, Section 223.3 (1)
of the Act makes provisions for a municipality to appoint an independent Integrity Commissioner to oversee
the application of a code of conduct or other policies and procedures governing the ethical behaviour of
members of Council and/or local boards. The Town of Ajax Council Member Code of Conduct, proclaimed
through By-Law 89-2004 and followed in conjunction with Procedure By-Law 101-2003 currently serves
as a guide to govern the ethical behaviour of members of Council. An Integrity Commissioner would have
recourse (if delegated by Council through Sections 23.1, 23.2, 23.3 and 23.4) to issue an official reprimand
or a suspension of the Councillor’s pay for up to ninety (90) days in the event that a member of Council
was found to be in contravention to the Code of Conduct. Since potential Code of Conduct issues have
been raised only rarely, staff do not recommend the appointment of an Integrity Commissioner at this time
but will continue to monitor the actions undertaken by other municipalities in Ontario in this regard. A recent
report from the Region of Durham considers the potential appointment of a central Integrity Commissioner
that could be utilized by all respective lower tier municipalities. There are several logistical challenges in
such a proposal, but staff will continue to closely monitor the situation for developments.
Auditor General
Section 223.19 of the Act provides Council the opportunity to appoint an individual to assist with monitoring
the quality and value with respect to the usage of public funds. The Auditor General would also uphold
accountability with respect to Council’s fiscal stewardship and the direction undertaken regarding its
financial commitments. It is well defined that the statutory duties of an Auditor General would not conflict
with those provided for in Subsection 296 (1) of the Act, including annual audits of the accounts and
transactions of the municipality. Due to the existing quality system internal audits and
corrective/preventative action system, internal financial audits and the semi-annual external audits, staff
do not recommend the appointment of an auditor general at this time, but will continue to monitor the
actions undertaken by other municipalities in Ontario in this regard.
Lobbyist Registrar
Section 223.11 (1) of the Act authorizes Council to create a lobbyist registry and to track and control efforts
by registered lobbyists in terms of interaction with Council and staff. The Act provides the option to appoint
a Lobbyist Registrar to monitor lobbyist activity and conduct inquiries where there is activity by an
unregistered lobbyist or there appears to have been a breach of the Code of Conduct with respect to
lobbyist restrictions. The Registrar is provided authority under the Public Inquiries Act and any reports
made by the Registrar must be open to the public. The City of Toronto appears to be the only Ontario
municipality that currently has a lobbyist registry. Toronto’s system was established in 2003 and is
voluntary in nature. Although staff do not recommend the creation of a lobbyist registry or the appointment
of a Lobbyist Registrar at this time, they will continue to monitor the direction taken by other municipalities.
Subject: Bill 130 Discretionary Appointments
Page 4
Ombudsman
Under Section 223.13 (1) municipalities may now appoint an independent Ombudsman who would (upon
complaint) investigate any decision, recommendation or act established in the course of the administration
of the municipality. The Ombudsman is given broad investigative powers which are similar to those found
in the Public Inquiries Act and include the right to access any documentation. Upon completion of the
investigation, the Ombudsman would prepare a public report containing such recommendations as deemed
necessary. There is no review by the courts of the proceedings or decisions of the Ombudsman, except
on the grounds of jurisdiction. To date, the City of Toronto appears to be the only municipality with an
Ombudsman and although staff does not recommend the appointment of such a position at this time, they
will continue to monitor the direction taken in other Ontario municipalities.
Financial Implications:
The By-law attached as Appendix A sets out a process for dealing with requests for closed meeting
investigations. In addition to the format and process established for the application and receipt of these
requests, the process also establishes a $25 fee for the processing of a request. Other municipalities are
reviewing the potential to implement fees ranging from $25 to $125 in order to persuade against the
application of frivolous or vexatious requests.
The By-law attached to this report as Appendix B provides for the contract details with respect to the
proposed service agreement with LAS. A two year service agreement with LAS commencing January 1,
2007 and ending December 31, 2009 at a total retainer cost of $600. A daily investigation fee of $1,250,
plus all applicable taxes, will be charged to the municipality plus all legal fees and reasonable expenses
incurred during the course of an investigation.
Communication Issues:
Notice of the meeting in which the investigator process will be discussed will be posted to the Town’s
website.
Conclusion:
Staff recommends the approval of Appendix A as attached to this report, a By-law providing for a process
to deal with requests for closed meeting investigations. Staff also recommends the approval of Appendix
B as attached to this report, a By-law to enter into a two year service agreement with LAS as the
independent closed meeting Investigator for the Town of Ajax. It is difficult to estimate the number of
requests that the Town will receive, however, the approval of a process and the appointment of an
independent investigator service will appropriately prepare this municipality if and when they occur.
Blair Labelle, Manager of Legislative Services, Deputy Clerk
Martin de Rond, Director of Legislative and Information Services, Town Clerk
Subject: Bill 130 Discretionary Appointments
Page 5
APPENDIX A
THE CORPORATION OF THE TOWN OF AJAX
BY-LAW NUMBER XX-2007
Being a By-Law to authorize an official Closed Meeting
Investigation Request Process for the Town of Ajax
WHEREAS effective January 1, 2008, Section 239.1 of the Municipal Act, 2001, as amended, 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;
NOW THEREFORE the Council of the Corporation of the Town of Ajax enacts as follows:
THAT clauses One (1) through Seventeen (17) of the Town of Ajax Closed Meeting Investigation Request
Process be deemed the official Town process with respect to handling requests to investigate ‘closed
meeting’ portions of Council of the Town of Ajax, General Government Committee or Community Affairs
and Planning Committee:
TOWN OF AJAX CLOSED MEETING INVESTIGATION REQUEST PROCESS
1. A person (the “Complainant”) may request an investigation of any closed meeting of the Council
of the Town of Ajax or one of its standing committees.
2. The investigation request (“the request”) must be made in writing, dated and properly identify the
Complainant including a full name, address, telephone number, fax number and email address and
accompanied by a $25 application fee.
3. All such requests shall be directed to the Town Clerk who will document each Investigation
Request and maintain a record of all complaints submitted to the Town.
4. The request must be received by the Town of Ajax within 60 days of the date that the meeting
being investigated took place.
5. The Complainant will be provided with an Investigated Request form which must be completed in
writing. The Complainant will receive a copy of the Investigation Request together with a copy of
the By-law detailing the procedures for submitting a complaint.
6. In the Investigation Request form, the Complainant must provide in writing:
a) reason(s) for the request;
c) address, telephone number and name/signature of the requester;
d) identification of the closed meeting in question; and
e) rationale for the investigation (ie. details of the violation).
7. Upon receipt of a completed Investigation Request and appropriate background material, the Town
of Ajax will review the materials to verify that:
a) the name, address and identity of the Complainant are valid;
b) the complaint is complete; and
c) the complaint is the first and only complaint by that Complainant in respect of
the meeting in question.
Subject: Bill 130 Discretionary Appointments
Page 6
8. The Town of Ajax will as soon as reasonably practicable appoint an investigator and forward the
completed investigation Request and supporting materials to the Investigator.
9. In the event that an Investigation Request is incomplete the complaint will be returned to the
Complainant with a precise description of the reason(s) for the return of the Investigation Request
and specific instructions as to how to complete the request so to be in compliance with this
process.
10. The Complainant must return the completed Investigation Request or a new Investigation Request
within the time limit outlined in clause 4, or 30 days from the date that the original Investigation
request was returned, whichever is later.
11. In the event that the Complainant fails to return the completed Investigation Request or a new
Investigation Request, the Town of Ajax shall record the name of the Complainant and the meeting
in question and close the file. No further notice will be provided.
12. In the event that the Complainant returns the completed Investigation Request or a new
Investigation Request, the Town of Ajax will as soon as reasonably practicable appoint an
Investigator and forward the completed Investigation Request and supporting materials to the
Investigator.
13. The Town of Ajax shall forward to the Investigator in relation to the meeting under investigation:
a) the completed Investigation Request;
b) a certified copy of the procedural By-law for the Town of Ajax;
c) a certified copy of the agenda and all relevant attachments;
d) a certified copy of the minutes of the meeting;
e) a contact list for all members of Council, the local board or committee and for all
other persons present at the meeting if available;
f) any other information that the Town Clerk deems relevant; and
g) such other information as may be requested by the Investigator.
14. The Investigator shall have all power, rights and duties as set out in Subsections 223.13 (6) and
Sections 223.14 to 223.18 of the Municipal Act, 2001 as amended.
15. Contingent upon the nature of the complaint, the Investigator will issue his/her report directly to the
next available Council meeting.
16. The powers of the Investigator are paramount in accordance with Subsection 223.13 (6) of the
Municipal Act, 2001 as amended.
17. This By-law shall come into force and take effect January 1, 2008.
READ a first and second time this Tenth day
of December, 2007
READ a third time and passed this Tenth day
of December, 2008
_____________________________ Mayor
______________________________Clerk
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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 Municipality 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
3. The Municipality hereby grants to LAS those powers and duties outlined in
Section 239.2 of the Act, 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.
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7. The Parties agree to indemnify and save harmless each other 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 arising out of or in
connection with any breach of any representation, warranty, covenant or any
provision under this Agreement, provided that the Party not at fault gives prompt
written notice of any such losses or claims to the other Party.
8 Notwithstanding Section 7, no Party shall be responsible for any liability in
respect of a third-party claim arising under this Agreement due to the wilful
misconduct, gross negligence, or bad faith of the other Party.
9. LAS shall not be liable under this Agreement for any consequential, special, or
indirect damages whatsoever and the maximum aggregate amount of
indemnification payable by LAS under this Agreement for any reason whatsoever
shall not exceed the Fees.
Process
10. 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;
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
11. The Municipality agrees to pay fees and expenses of LAS or the Delegate for the
Services (the “Fees”):
1) A retainer fee of Six Hundred Dollars ($600) per term plus applicable
taxes, payable upon execution of this Agreement;
2) A daily investigation fee of One Thousand Two Hundred Fifty Dollars
($1,250.00) plus all applicable taxes;
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i) A day consists of eight (8) working hours;
ii) Daily investigation fees will be billed in hourly increments
where appropriate
3) All legal fees incurred by LAS or the Delegate arising out of a claim made
by a third-party regarding this Agreement; and
4) All reasonable expenses incurred during the course of providing the
Services, including but not limited to any costs associated with
transportation expenses, meals, report preparation including translation
costs where appropriate, and out-of-pocket administrative costs.
12. The investigation fee shall be billed by LAS or its Delegate, as appropriate.
13. The retainer fee shall be billed by LAS.
14. Any investigation fee submitted by the Delegate shall be deemed to be a debt
owed to both LAS and the Delegate until paid in full.
Additional Services Provided by LAS or the Delegate
15. LAS agrees to create and maintain, or cause the Delegate to create and maintain, a
password protected 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.
16. Upon execution of this Agreement by the Parties, LAS agrees to provide the
Municipality with an information package including but not limited to: an
appointing by-law, educational materials, etc.
Term
17. The term of this Agreement shall be two (2) years commencing on the first day of
January 2008, or any later day as agreed upon by the Parties, and ending on
December 31, 2009 (the “Term”).
Renewal
18. Subject to Section 17 herein, this Agreement shall automatically renew from year
to year unless and until terminated by either Party upon ninety (90) days prior
written notice on the same terms and conditions contained herein except that the
retainer fee and investigation fee may be adjusted by LAS, in its sole discretion,
acting reasonably. LAS agrees to invoice the Municipality for the retainer fee
related to the renewal period at least one hundred and twenty (120) days prior to
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the commencement of the renewal term and the Municipality agrees to pay such
invoice at least thirty (30) days prior to the commencement of the renewal term.
Termination
19. This Agreement may be terminated by either Party on ninety (90) days written
notice to the other Party 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.
Dispute Resolution
20. 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.
21. The aggrieved Party 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.
22. 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 process or means
legally available to resolve the Dispute.
Miscellaneous
23. All provisions herein shall enure to the benefit of and be binding upon the Parties
and their respective successors and permitted assigns.
24. 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.
25. This Agreement, 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.
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26. 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.
27. 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.
28. Time shall be of the essence of this Agreement.
29. 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.
30. 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.
31. 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 Municipality:
65 Harwood Ave. S.
Ajax, ON L1S 2H9
Facsimile Number: (905) 683-1061
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
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Party may at any time by notice in writing to the other change its address for
service of notice.
32. 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]
The Corporation of the Town of Ajax and LAS have respectively executed and delivered
this Agreement as of the date first set out above.
The Corporation of the Town of Ajax
___________________________
Mayor
___________________________
Clerk
I have authority to bind the corporation
Local Authority Services Limited
____________________________
Nancy Plumridge
President & Secretary Treasurer
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, 2001, 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
(2) 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
(3) 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
(4) 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
(5) 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
(6) 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
(8) An investigator is not required to be a municipal employee. 2006, c. 32, Sched. A,
s. 104.
Application
(9) 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
(10) 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. 104.
Publication of reports
(11) 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
(6) 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
(2) 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 municipallycontrolled
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
(3) 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
(4) 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, 2006”. 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
(3) 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 coming 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.O. 1990, CHAPTER 0.6
Evidence
19. (1) The Ombudsman may from time to time require any officer, employee or
member of any governmental organization 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. O.6, s. 19 (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 governmental
organization 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.O. 1990, c. O.6, s. 19 (2).
Secrecy
(3) Subject to subsection (4), no person who is bound by the provisions of any Act,
other than the Public Service Act, 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. O.6, s. 19 (3).
Note: On a day to be named by proclamation of the Lieutenant Governor,
subsection (3) is amended by the Statutes of Ontario, 2006, chapter 35, Schedule C,
subsection 94 (3) by striking out “the Public Service Act” and substituting “the
Public Service of Ontario Act, 2006”. See: 2006, c. 35, Sched. C, ss. 94 (3), 137 (1).
Providing personal information despite privacy Acts
(3.1) A person who is subject to the Freedom of Information and Protection of
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
(1) or (2). 2004, c. 3, Sched. A, s. 94.
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. O.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. O.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. O.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. O.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. O.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. O.6, s. 19 (9); 2006, c. 19, Sched. C, s. 1 (1).
