Paul Dubé, the Ombudsman of Ontario, recently released his long-awaited investigative report into meetings held by the Niagara Central Dorothy Rungeling Airport (NCDRA) Commission in 2021, which allegedly contravened Ontario’s Municipal Act, and did not follow procedure bylaws.
The investigation stemmed from a citizen complaint regarding five closed meetings held by the Commission that year, alleging that the Commission did not pass a resolution to proceed into closed session on April 8, 2021, and that there was no notice provided for the Commission’s meetings on April 23, May 13, August 19, and August 30, 2021. The complainant also alleged that the Commission’s in-camera discussion during the meetings on April 8 and August 19, 2021 did not fall within any of the prescribed exceptions in the Ontario Municipal Act.
The complainant stated that the Commission lacked a procedure bylaw on the issue, and did not adhere to the “best practice” of reporting back in public after its closed sessions.
The NCDRA Commission is comprised of politicians appointed by the four local municipalities that cover most of its costs: the City of Welland, the City of Port Colborne, the Township of Wainfleet, and the Town of Pelham. The airport is located on River Road, within Pelham.
Under the Municipal Act of 2001, all meetings of council, local boards, and committees must be open to the public, unless they fall within prescribed exceptions. As of January 1, 2008, the Act gives anyone the right to request an investigation into whether a municipality has complied with the Act in closing a meeting to the public. Municipalities may appoint their own investigator, but the Act designates the Ombudsman as the default investigator for municipalities that have not appointed their own.
Dubé’s office has investigated hundreds of closed-door meetings since 2008. The Airport Commission cooperated fully in the investigation, according to the Ombudsman.
In October of 2021, Dubé’s office advised the Commission of its intent to investigate the aforementioned complaint. Their probe involved reviewing meeting materials and correspondence pertaining to each of the five meetings, and also reviewing the Commission’s website and relevant portions of an undated, unsigned draft procedure bylaw. Each Commission member and the Commission’s website administrator were interviewed, along with the Commission’s bookkeeper and the Deputy Clerk for the City of Port Colborne, both who assisted the Commission with the preparation of meeting agendas, minutes, motions, and meeting links.
Dubé said that he first advised the Commission to create a procedure bylaw nearly a decade ago, in November of 2013, at which time the Commission undertook to create one. However, when asked about the procedure bylaw during the investigation, the Commission staff and Chair said they were not aware of the Commission having one. Several Commission members recalled seeing what they believed to be a draft procedure bylaw from 2014, but none could confirm that the document had ever been finalized.
“Failing to adopt a procedure bylaw is a contravention of the Act,” wrote Dube in his summary. “It left the Commission without the required rules regarding meeting notice, and the calling, place, and proceedings of meetings. This omission made it difficult for the public to access and observe meetings in process, as required by the open meeting rules.”
Dubé noted that during the course of his investigation, the Commission enacted a procedure bylaw on September 29, 2022. “I commend the Commission for taking steps to address this omission and comply with the Act,” he wrote.
Dubé made eight recommendations to assist the Commission in enhancing its transparency of meetings, and fulfilling its obligations under the Act. They included greater individual and collective vigilance of all obligations under the Act; ensuring that all in-camera meetings are preceded by a resolution; complete and accurate record keeping of all meetings; public notice in advance of each meeting; and compliance with the Act regarding use of in-camera meetings. Dubé also recommended that, as a best practice, the NCDRA Commission should consider audio or video recording all of its meetings, including those in-camera, and should “report back in a meaningful way, when possible, following closed session discussion.”
Pelham Ward 1 Councillor Wayne Olson was blunt in his evaluation of the situation at NCDRA.
”Now that we have a proven record of a lack of transparency in matters to do with the airport, do we need to give the new Commission time to work on the issues? I’m not sure that more patience is warranted, because this is the second time that a complaint against the Airport Commission has been upheld. After all, the Commission has had years to clean up these problems, and it took the prodding of the Ombudsman to get action,” he said.
To Olson’s mind, the needs at the airport are straightforward.
“We need a legal evaluation of the ownership status of the airport, and we need a legal evaluation of rights and responsibilities of the Commission. The two go hand-in-hand,” he said. “Then we need a properly done business plan. My concern is the potential undisclosed contingent liabilities being created by a deteriorating asset and the proposed new construction. A recent plan was to build several large residences with personal taxiways to access the airport and personal hangars at the house. Who is going to build and maintain these things? As the host community, does Pelham get the taxation revenue? And what happens if the fly-in mansions are built and the airport deteriorates and cannot be used? Is there a contingent liability to the mansion owners? Who is going to own the land? Will Pelham’s bylaws and codes be followed?”
The NCDRA Commission was given the opportunity to review a preliminary version of the Ombudsman’s report, and provide comments, but declined to do so. Similarly, PelhamToday received no response from Commission Chair John MacLellan or former chair Leo Van Vliet when asked for comment on Dubé’s report.
