Comment 33866

By Tammany (anonymous) | Posted September 18, 2009 at 09:35:36

"I guess that answers why they had the in camera session. "

Yeah, it's an excuse, but not a very good one in my view. The fact that a lawsuit is associated with one of the developers involved in the deal is not, in my view, sufficient to justify closing all discussions around the proposal generally.

Section 239(2)(e) Municipal Act provides that a meeting may be closed to the public if the subject matter being considered is litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board. To read this is as meaning that a council can close its meetings simply because litigation is in some way being considered would be naively or opportunistically expansive. The subsection is clearly intended to protect what is called "litigation privilege." Thus, if council were taking legal advice or contemplating strategy in relation to a pending or anticipated lawsuit, then fine, they should be able to have an in camera session. But the second that discussion is over the doors should be reopened.

Further, the SCC's decision in Blank v. Canada clearly indicates that such provisions should be read down to reflect the fact that "unlike the solicitor-client privilege, [litigation privilege] is neither absolute in scope nor permanent in duration."

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