Local Government Disclosure of Interest Act, 1994, S.O. 1994, c. 23, Sched. B"

Local Government Disclosure of Interest Act, 1994, S.O. 1994, c. 23, Sched. B, Local Government Disclosure of Interest Act, 1994

Local Government Disclosure of Interest Act, 1994

S.O. 1994, CHAPTER 23
Schedule B

Note: This Act was repealed on January 1, 2003. See: 2001, c. 25, ss. 484 (2), 485 (1).

Amended by: 1996, c. 32, s. 74; 1997, c. 31, s. 152; 1999, c. 6, s. 35; 2001, c. 25, s. 484.

(NOTE: By Order in Council approved July 12, 1995, the powers and duties of the Minister were transferred to the Minister of Municipal Affairs and Housing.)

Note: This Act comes into force on a day to be named by proclamation of the Lieutenant Governor. See: 1994, c. 23, ss. 2 (1), 92.

Note: On March 9, 1995, a proclamation was issued naming April 15, 1995 as the day on which this Act would come into force. On April 13, 1995, a proclamation was issued revoking the proclamation of March 9, 1995.

Purpose

1. The purpose of this Act is to preserve the integrity and accountability of local government decision-making. 1994, c. 23, Sched. B, s. 1.

Definitions

2. (1) In this Act,

“board” means,

(a) a local board as defined in the Municipal Affairs Act,

(b) boards, agencies, corporations or other entities or classes of them established in relation to local, municipal or school purposes as may be prescribed in the regulations; (“commission”)

“child” means a child under 18 years of age born within or outside marriage and includes an adopted child and a person whom a parent has demonstrated a settled intention to treat as a child of his or her family; (“enfant”)

“commissioner” means the commissioner appointed under this Act; (“commissaire”)

“committee” means any advisory or other committee or subcommittee composed of members of one or more boards or councils; (“comité”)

“council” means the council of a municipality other than an improvement district and the board of trustees of an improvement district; (“conseil”)

“meeting” includes any regular, special, committee or other meeting of a council or board; (“réunion”)

“member” means a member of a council or of a board; (“membre”)

“Minister” means the Minister of Municipal Affairs; (“ministre”)

“municipality” means a local municipality, county, improvement district, metropolitan, regional or district municipality and the County of Oxford; (“municipalité”)

“pecuniary interest” includes a direct or indirect pecuniary interest of a member and a pecuniary interest deemed to be that of a member; (“intérêt pécuniaire”)

“prescribed” means prescribed by regulations made under this Act; (“prescrit”)

“same-sex partner” means a same-sex partner as defined in Part III of the Family Law Act; (“partenaire de même sexe”)

“senior officer” means the chair or any vice-chair of the board of directors, the president, any vice-president, the secretary, the treasurer or the general manager of a corporation or any other person who performs functions for the corporation similar to those normally performed by a person occupying any such office; (“dirigeant”)

“spouse” means a spouse as defined in Part III of the Family Law Act. (“conjoint”) 1994, c. 23, Sched. B, s. 2 (1); 1999, c. 6, s. 35 (1).

Non-application

(2) This Act does not apply to a committee of management of a recreation centre appointed by a school board, to a local roads board or to a local services board. 1994, c. 23, Sched. B, s. 2 (2).

Pecuniary interest

(3) For the purposes of this Act, a member shall be deemed to have a pecuniary interest in a matter in which a council or board is concerned, if,

(a) the member or his or her nominee,

(i) is a shareholder in, or a director or senior officer of, a corporation that does not offer its securities to the public,

(ii) has a controlling interest in, or is a director or senior officer of, a corporation that offers its securities to the public,

(iii) is a partner or agent of a person,

(iv) is a member of a body,

that has a pecuniary interest in the matter;

(b) the member or the member’s spouse, same-sex partner or child is an employee of a person or body and the member knows that the person or body has a pecuniary interest in the matter;

(c) the member knows that the member’s spouse, same-sex partner or child has a direct or indirect pecuniary interest in the matter; or

(d) the member knows that the member’s spouse, same-sex partner or child,

(i) is a shareholder in, or a director or senior officer of, a corporation that does not offer its securities to the public,

(ii) has a controlling interest in, or is a director or senior officer of, a corporation that offers its securities to the public,

(iii) is a partner or agent of a person,

(iv) is a member of a body,

that has a pecuniary interest in the matter. 1994, c. 23, Sched. B, s. 2 (3); 1999, c. 6, s. 35 (2).

Definition

(4) In subsection (3),

“controlling interest” means the interest that a person has in a corporation when the person beneficially owns, directly or indirectly, or exercises control or direction over, equity shares of the corporation carrying more than 10 per cent of the voting rights attached to all equity shares of the corporation for the time being outstanding. 1994, c. 23, Sched. B, s. 2 (4).

Exceptions

3. Section 4 does not apply to a pecuniary interest in any matter that a member may have,

(a) as a user of any public utility service supplied to the member by the municipality or board under similar conditions as other users;

(b) as a recipient of any service or commodity or any subsidy, loan or other benefit offered by the municipality or board on terms common to other persons;

(d) as a depositor with the municipality or board, if the whole or part of the deposit is or may be returnable to the member in like manner as a deposit is or may be returnable to other persons under similar conditions;

(e) in any property affected by a work under the Drainage Act or under the Local Improvement Act;

(f) in farm land that is exempt from taxation for certain expenditures under the Assessment Act;

(g) as a director or senior officer of a corporation incorporated by the municipality or to carry on business on behalf of the municipality or board or as a person nominated by the council as a director or officer of a corporation;

(h) as a member or office holder of a council, board or other body when it is required by law or by virtue of office or results from an appointment by a council or board;

(i) as a recipient of an allowance for attendance at meetings, or any other allowance, honorarium, remuneration, salary or benefit to which the member may be entitled as a member;

(j) in common with persons generally within the area of jurisdiction or, if the matter under consideration affects only part of the area, in common with persons within that part;

(k) as a member or volunteer for a charitable organization or a not-for-profit organization with objects substantially similar to those provided by section 118 of the Corporations Act if the member receives no remuneration or other financial benefit from the organization and the pecuniary interest is in common with other persons in the organization;

(l) as a recipient of remuneration, consideration or an honorarium under section 256 of the Municipal Act or as a volunteer firefighter;

(m) that is so remote or insignificant in its nature that it cannot reasonably be regarded as likely to influence the member. 1994, c. 23, Sched. B, s. 3.

Duty of member

4. (1) If a member has a pecuniary interest in any matter and is or will be present at a meeting at any time at which the matter is the subject of consideration, the member,

(a) shall, before any consideration of the matter at the meeting, orally disclose the interest and its general nature;

(b) shall not, at any time, take part in the discussion of, or vote on, any question in respect of the matter;

(c) shall not, at any time, attempt, either on his or her own behalf or while acting for, by or through another person, to influence the voting on any such matter or influence employees of or persons interested in a contract with the council or board in respect of the matter;

(d) shall immediately leave the meeting and remain absent from it at any time during consideration of the matter; and

(e) shall, as soon as possible, complete and file with the clerk of the municipality or secretary of the board a written disclosure, in the prescribed form, setting out the interest and its general nature.

When absent from meeting

(2) If a member is absent from all or part of a meeting in which he or she has a pecuniary interest in a matter being considered, other than an absence due to compliance with clause (1) (d), clause (1) (c) applies to that member and he or she shall,

(a) disclose the interest in the manner described in clause (1) (a) at the next meeting of the council or board that the member attends;

(b) in the case of a committee meeting, disclose the interest in the manner described in clause (1) (a) at the next meeting of the committee that the member attends; and

(c) file a written disclosure in the manner described in clause (1) (e) as soon as possible after the next meeting that the member attends. 1994, c. 23, Sched. B, s. 4 (1, 2).

Limitation

(3) A disclosure under this section is not required to disclose that the member has a spouse, same-sex partner or child or the name of the member’s spouse, same-sex partner or child. 1994, c. 23, Sched. B, s. 4 (3); 1999, c. 6, s. 35 (3).

Interest of member

(4) Where a disclosure omits reference to a member’s spouse, same-sex partner or child, the interest shall be stated as being that of the member. 1994, c. 23, Sched. B, s. 4 (4); 1999, c. 6, s. 35 (4).

Filing

(5) If a member of a committee is required to file a written disclosure under this section, the member shall file it in the manner described in clause (1) (e) with the clerk of the council or secretary of the board that appointed the member. 1994, c. 23, Sched. B, s. 4 (5).

Gifts

5. (1) A member shall not, either directly or through another person, accept a fee, gift or personal benefit except compensation authorized by law that is connected with the performance of his or her duties of office. 1994, c. 23, Sched. B, s. 5 (1).

Exception

(2) Subsection (1) does not apply to,

(a) a gift or personal benefit that is received as an incident of the protocol or social obligations that normally accompany the responsibilities of office; or

(b) a contribution that is permitted under the Municipal Elections Act, 1996. 1994, c. 23, Sched. B, s. 5 (2); 1996, c. 32, s. 74 (1).

Disclosure

(3) A member shall complete and file a disclosure statement with the clerk of the municipality or secretary of the board as soon as possible after receiving a gift or personal benefit described under clause (2) (a) if,

(a) the value of the gift or benefit exceeds the lower of the amount prescribed or provided by by-law or resolution; or

(b) the total value received directly or indirectly from one source in one calendar year exceeds the lower of the amount prescribed or provided by by-law or resolution.

Contents

(4) A disclosure statement filed under subsection (3) shall state the nature of the gift or benefit, its source and the circumstances under which it was given or accepted. 1994, c. 23, Sched. B, s. 5 (3, 4).

Financial disclosure requirement

6. (1) This section applies only to members of,

(a) a council;

(b) a board as defined in subsection 1 (1) of the Education Act;

(d) a police village. 1994, c. 23, Sched. B, s. 6 (1); 1997, c. 31, s. 152.

Filing form

(2) Every member shall, within 60 days of being elected or appointed, file with the clerk of the municipality or the secretary of the board a financial disclosure statement in the prescribed form. 1994, c. 23, Sched. B, s. 6 (2).

Omissions

(3) The member may with the consent of the commissioner omit or delete from the financial disclosure statement information if,

(a) disclosure would reveal a source of income for the member or the member’s spouse, same-sex partner or child from services that are customarily provided on a confidential basis; or

(b) the possibility of serious harm to a person or business justifies a departure from the general principle of public disclosure. 1994, c. 23, Sched. B, s. 6 (3); 1999, c. 6, s. 35 (5).

Changes

(4) The member shall file a supplementary financial disclosure statement during the month of December of every calendar year except an election year. 1994, c. 23, Sched. B, s. 6 (4).

Limitation

(5) A financial disclosure statement under this section is not required to disclose that the member has a spouse, same-sex partner or child or the name of the member’s spouse, same-sex partner or child. 1994, c. 23, Sched. B, s. 6 (5); 1999, c. 6, s. 35 (6).

Interest of member

(6) Where a financial disclosure statement omits reference to a member’s spouse, same-sex partner or child, the financial information shall be stated as being that of the member. 1994, c. 23, Sched. B, s. 6 (6); 1999, c. 6, s. 35 (7).

Commissioner

7. (1) The Minister may appoint a commissioner to exercise the powers and perform the duties set out in this Act.

Assistant commissioner

(2) The commissioner may appoint one or more assistant commissioners who may exercise such powers and duties of the commissioner as the commissioner delegates to them.

Restriction

(3) The commissioner and any assistant commissioner shall not be a member of the Legislative Assembly, a council or a board.

Guidelines

(4) The commissioner may provide such guidelines for the proper administration of this Act as he or she considers necessary for the guidance of members, boards and municipalities. 1994, c. 23, Sched. B, s. 7.

Applications

8. (1) Any person may apply in writing to the commissioner for an investigation to be carried out of an alleged contravention by a member of section 4, 5 or 6.

Timing

(2) An application may only be made within 90 days after the person became aware of the alleged contravention.

Fees

(3) The commissioner may establish fees in respect of applications under subsection (1) and may waive any fee in cases of hardship.

Contents

(4) An application shall set out the reasons for believing that the member has contravened section 4, 5 or 6 and include a statutory declaration attesting to the fact that the person became aware of the contravention not more than 90 days before the date of the application.

Investigation

(5) The commissioner, upon receiving an application, may conduct such investigation as he or she considers necessary.

Same

(6) For the purpose of conducting an investigation, the commissioner,

(a) has the right of access, at all reasonable hours, to all relevant books, papers or documents of the member or applicant and of a municipality or board; and

(b) has the powers of a commission under Part II of the Public Inquiries Act which Part applies to the investigation as if it were an inquiry under that Act.

Timing

(7) The commissioner shall complete the investigation within 180 days of receiving the completed application.

Completion

(8) Upon completion of the investigation, the commissioner,

(a) shall, if he or she considers it appropriate, apply to the Ontario Court (General Division) for a determination as to whether the member has contravened section 4, 5 or 6; or

(b) shall advise the applicant that the commissioner will not be making an application to the court.

Court determination

(9) The question of whether or not a member has contravened section 4, 5 or 6 may be tried and determined by the Ontario Court (General Division).

Application

(10) Any person may apply to the court for a determination under subsection (9).

Requirement

(11) No application may be made to the court unless the application includes a statutory declaration attesting to the fact that the person became aware of the contravention not more than 90 days before the date of the application to the commissioner under subsection (4).

Restriction

(12) Despite subsection (10), no person other than the commissioner shall make an application to the court unless the person has submitted an application to the commissioner under subsection (1) and,

(a) the commissioner has notified the applicant that he or she will not be carrying out an investigation;

(b) the commissioner has failed to complete the investigation within 180 days of receiving the application; or

(c) the commissioner has notified the applicant that the commissioner will not be making an application to the court under clause (8) (b).

Limitation

(13) No application shall be brought to the court under this section after the expiration of two years from the date on which the contravention is alleged to have occurred. 1994, c. 23, Sched. B, s. 8.

Power of court

9. (1) If the court determines that a member or a former member while he or she was a member has contravened section 4, 5 or 6, the court,

(a) shall suspend the member without pay and benefits for a period of not more than 90 days;

(b) may, in the case of a member, declare the seat of the member vacant;

(d) may, where the contravention has resulted in personal financial gain, require the member or former member to make restitution to the party suffering the loss, or, where such party is not readily ascertainable, to the municipality or board of which he or she is a member or former member.

Restrictions

(2) A member suspended from a council or board under subsection (1) shall not during the period of the suspension,

(a) participate in any meeting of the council or board as a member or otherwise;

(b) participate in any meeting of any body,

(i) to which the member has been appointed by the council or board, or

(ii) on which the member is required by law to sit by virtue of the member’s office on the council or board;

(c) participate in any meeting of any other council or board that appointed or approved the appointment of the member to the council or board; or

(d) in the case of suspension from a council, participate in any meeting of any other council of which the member is also a member.

No vacancy

(3) Clause 38 (c) of the Municipal Act and section 229 of the Education Act do not apply to the seat of a member if the member is absent due to a suspension under clause 9 (1) (a). 1994, c. 23, Sched. B, s. 9.

Appeal to Divisional Court

10. (1) An appeal lies to the Divisional Court from a determination made under section 9 as to whether a contravention has occurred or not.

Judgment or new trial

(2) The Divisional Court may give any judgment that ought to have been pronounced, in which case its decision is final, or the Divisional Court may grant a new trial for the purpose of taking evidence or additional evidence and may remit the case to the Ontario Court (General Division) and, subject to any directions of the Divisional Court, the case shall be proceeded with as if there had been no appeal.

Further appeal

(3) If the case is remitted to the Ontario Court (General Division) under subsection (2), the appeal lies from the order of the court to the Divisional Court in accordance with this section. 1994, c. 23, Sched. B, s. 10.

Proceedings not invalidated

11. The failure of any member to comply with section 4 does not of itself invalidate any proceedings in respect of any matter but the proceedings are voidable at the instance of the municipality or of the board, as the case may be, before the expiration of two years from the date of the passing of the by-law or resolution authorizing the matter unless to make void the proceedings would adversely affect the rights of any person acquired under or by virtue of the proceedings who acted in good faith and without actual notice of the failure to comply with section 4. 1994, c. 23, Sched. B, s. 11.

Other procedures prohibited

12. The following proceedings in respect of disclosure of interest shall be taken only under this Act:

1. To suspend a member without pay or benefits.

2. To declare a seat vacant.

3. To disqualify a member or former member.

4. To require a member or former member to make restitution where a contravention has resulted in personal gain. 1994, c. 23, Sched. B, s. 12.

Quorum

13. (1) If the number of members who, by reason of this Act, are disabled from participating in a meeting is such that there is no quorum, despite any other Act, any number that is not less than one-third of the total number of members of the council or board shall be deemed to constitute a quorum, but the number shall not be less than two unless an order is made under subsection (3) authorizing it.

Same

(2) When the remaining number of members under subsection (1) is two, the concurrent votes of both are necessary to carry any resolution, by-law or other measure.

Order

(3) If the remaining number of members who are not disabled from participating in the meeting is less than one-third of the total number of members or less than two, as the case may be, the council or board may apply to the commissioner without notice for an order authorizing the council or board to give consideration to, discuss and vote on the matter out of which the pecuniary interests arise.

Declaration

(4) The commissioner may declare that section 4 does not apply to a matter that is the subject of consideration by a council or board if,

(a) the council or board applies to the commissioner under subsection (3); and

(b) the council or board submits a copy of the written disclosure statements of the members who are disabled from participating.

Conditions

(5) As part of a declaration given under subsection (4), the commissioner may require the council or board to comply with any conditions the commissioner considers appropriate.

Effect

(6) If a declaration is made, section 4 does not apply and the council or board may give consideration to the matter in the same manner as though none of the members had a pecuniary interest in it, subject to any conditions the commissioner sets out in the declaration. 1994, c. 23, Sched. B, s. 13.

Minutes

14. Every oral declaration made under section 4 shall be recorded in the minutes of the meeting by the clerk of the municipality or secretary of the committee or board, as the case may be. 1994, c. 23, Sched. B, s. 14.

Register

15. (1) The clerk of a municipality and the secretary of a board shall maintain a register of disclosures for the members of the council or board, respectively.

Contents

(2) The register shall contain,

(a) the written disclosures of pecuniary interests under section 4;

(b) disclosure statements and supplementary disclosure statements of financial information under section 6; and

Inspection

(3) All documents in the register are public documents and may be inspected by any person upon request at the office of the clerk or the secretary during normal office hours.

Copies

(4) Any person may make extracts from the documents and is entitled to copies of them upon payment of such fees as may be charged by the municipality or board for the preparation of copies of other documents.

Retention of records

(5) Despite section 116 of the Municipal Act, a municipality or local board shall not destroy the documents in the register until after the prescribed period. 1994, c. 23, Sched. B, s. 15.

Prohibition re information

16. A member or former member shall not use or disclose information that is gained in the execution of his or her office and is not available to the general public to further or seek to further his or her pecuniary interests or the pecuniary interests of any other person. 1994, c. 23, Sched. B, s. 16.

Offence

17. Every person who contravenes section 16 is guilty of an offence. 1994, c. 23, Sched. B, s. 17.

Insurance

18. (1) Despite section 252 of the Municipal Act, the council of every municipality may pass by-laws,

(a) for contracting for insurance;

(b) despite the Insurance Act, to enable the municipality to act as an insurer; and

(c) for exchanging with other municipalities in Ontario reciprocal contracts of indemnity or inter-insurance in accordance with Part XIII of the Insurance Act,

to protect a member who has been found not to have contravened section 4, 5 or 6, against any costs or expenses incurred by the member as a result of a proceeding brought under this Act, and for paying on behalf of or reimbursing the member for the costs or expenses.

Insurance Act does not apply

(2) The Insurance Act does not apply to a municipality acting as an insurer for the purposes of subsection (1). 1994, c. 23, Sched. B, s. 18 (1, 2).

Surplus funds

(3) Despite subsections 387 (1) and (2) of the Insurance Act, any surplus funds and the reserve fund of a municipal reciprocal exchange may be invested only in such securities as a municipality may invest in under section 167 of the Municipal Act. 1994, c. 23, Sched. B, s. 18 (3); 1996, c. 32, s. 74 (2).

Note: During a one-year transitional period, beginning on March 6, 1997 and ending on March 6, 1998, the following rules apply:

Subsection 18 (3), as it read on March 5, 1997, continues to apply to investments made before that date. However, an investment made before that date shall not be continued beyond the transitional period unless it is a permitted investment under section 167 of the Municipal Act.

Surplus funds and the reserve fund of a municipal reciprocal exchange may also be invested in securities in which the municipality is permitted to invest under section 167 of the Municipal Act.

See: 1996, c. 32, ss. 74 (3-5), 102 (4).

Reserve funds

(4) The money raised for a reserve fund of a municipal reciprocal exchange may be spent or pledged for, or applied to, a purpose other than that for which the fund was established if two-thirds of the municipalities that are members of the exchange together with two-thirds of the municipalities that previously were members of the exchange and that may be subject to claims arising while they were members of the exchange agree in writing and if section 386 of the Insurance Act is complied with.

Boards

(5) A board has the same powers to provide insurance for or to make payments to or on behalf of its members as are conferred on a municipality under this section in respect of its members.

Former members

(6) A by-law or resolution passed under this section may provide that it applies to a person who was a member at the time the circumstances giving rise to the proceeding occurred but who, before the judgment in the proceeding, had ceased to be a member. 1994, c. 23, Sched. B, s. 18 (4-6).

By-laws

19. A municipality or board may pass by-laws or resolutions providing for the maximum amount of a single gift or benefit and of the combined value of gifts and benefits under section 5. 1994, c. 23, Sched. B, s. 19.

Community economic development corporations

20. If a director of a community economic development corporation is required to file a written disclosure or a disclosure statement under this Act, the director shall file it with the clerk of the municipality that nominated or appointed the person. 1994, c. 23, Sched. B, s. 20.

Regulations

21. The Lieutenant Governor in Council may make regulations prescribing,

(a) financial information or classes of financial information that must be disclosed or that is exempt from being disclosed in a financial disclosure statement under section 6;

(b) the maximum amount of a single gift or benefit and of the combined value of gifts and benefits under section 5. 1994, c. 23, Sched. B, s. 21.

Regulations

22. The Minister may make regulations,

(a) prescribing the duties of the commissioner;

(b) prescribing procedures for applications to the commissioner under section 13;

(d) prescribing boards, agencies, corporations or other entities or classes of them to which this Act applies;

(e) prescribing the period for the purposes of subsection 15 (5). 1994, c. 23, Sched. B, s. 22.

Conflict

23. In the event of conflict between a provision of this Act and a provision of any other Act, the provision of this Act prevails. 1994, c. 23, Sched. B, s. 23.

24. Omitted (enacts short title of this Act). 1994, c. 23, Sched. B, s. 24.