17-42 Integrity Commissioner, Closed Mtg. Investigator, OmbudsmanCOUNTY OF ELGIN
By -Law No. 1742
"BEING A BY-LAW TO APPOINT INDEPENDENT RESOLUTIONS INC. AS THE
INTEGRITY COMMISSIONER CLOSED MEETING INVESTIGATOR AND
OMBUDSMAN FOR THE COUNTY OF ELGIN PURSUANT TO SECTIONS 8 9 10 11
223.3 223.13 AND 239.2 OF THE MUNICIPAL ACT 2001 S.O. 2001 C.25
AS AMENDED"
WHEREAS Section 223.3 of the Municipal Act, 2001, as amended, authorizes a
municipal council to appoint an Integrity Commissioner who is responsible for performing
in an independent manner functions related to the Code of Conduct of members of council
and local boards; and,
WHEREAS Section 223.13 of the Municipal Act, 2001 as amended, authorizes a
municipality to appoint an Ombudsman who reports to council and whose function is to
investigate in an independent manner any decision or recommendation made, or act done
or omitted in the course of the administration; and,
WHEREAS Section 239.2 of the Municipal Act, 2001 as amended, authorizes a
municipality to appoint an Closed Meeting Investigator who has the function to investigate
in an independent manner, 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; and,
WHEREAS such services shall be undertaken by an Integrity Commissioner, Closed
Meeting Investigator and Ombudsman appointed by the County, pursuant to Sections 8, 9,
10, 11, 223.3, 223.13, 239.2 of the Act; and
WHEREAS the County deems it advisable to appoint Independent Resolutions Inc.
as Integrity Commissioner, Closed Meeting Investigator and Ombudsman to perform these
services for a three-year term commencing on January 1, 2018 with the option to renew for
two additional years; and,
WHEREAS Independent Resolutions Inc. has expressed interest in providing
services to the County and its constituent municipalities acting as Integrity Commissioner,
Closed Meeting Investigator and Ombudsman on the terms and conditions as agreed from
time to time and under written agreement in the form and of the content attached as
Schedule "A" hereto;
NOW THEREFORE BE IT RESOLVED THAT the Municipal Council of the
Corporation of the County of Elgin hereby enacts as follows:
1. THAT, subject to execution of the agreement attached as Schedule "A" hereto,
Independent Resolutions Inc. is hereby appointed as Integrity Commissioner, Closed
Meeting Investigator and Ombudsman for the County of Elgin to perform those functions
set forth in Sections 223.3 through 223.6, 223.13 through 223.17, and 239.1 (1-11) of the
Municipal Act, 2001 (Ontario) including but unlimited to:
a) Advice as to the application of the Code of Conduct, the Municipal Conflict of
Interest Act, and any related procedures, rules, and policies governing the ethical behavior
of members of council and local boards;
b) Conducting inquiries in respect of any requests alleging contravention of the
Code of Conduct, the Municipal Conflict of Interest Act and/or any other procedures, rule
or policy governing the ethical behavior of members of council and local boards;
c) Conducting inquiries in respect to the municipality or local boards' compliance
with section 239 in respect of a meeting or part of a meeting that was closed to the public
and in respect to any decision or recommendation made, or act done or omitted in the
course of the administration;
d) Reporting to council for the Corporation of the County of Elgin as to activities as
Integrity Commissioner, Closed Meeting Investigator and Ombudsman, including but not
limited to reports as to the results of any inquiry into alleged contravention and/or an
annual report of activities as Integrity Commissioner/Investigator/Ombudsman; and,
e) Educating members of council, members of local boards, the municipality and
the public about the municipality's code of conduct for members of council and members of
local boards and about the Municipal Conflict of Interest Act.
THAT this by-law shall come into force and take effect on January 1, 2018.
READ A FIRST, SECOND AND THIRD TIME AND FINALLY PASSED THIS 14TH DAY OF
DECEMBER 2017.
Julie onyou,
Chief Administrative Officer.
David Marr,
Warden.
Page (1
Schedule "A"
By -Law No. 17-42
MUNICIPAL OMBUDSMAN, CLOSED MEETING INVESTIGATOR AND INTEGRITY
COMMISSIONER AGREEMENT
MEMORANDUM OF AGREEMENT effective the 15i day of January, 2018.
BETWEEN:
CORPORATION OF THE COUNTY OF ELGIN
(hereinafter, the "County"")
OF THE FIRST PART
- and -
INDEPENDENT RESOLUTIONS INC.
(hereafter, the "Municipal Ombudsman, Closed Meeting Investigator and Integrity
Commissioner" or the "Independent Investigator")
OF THE SECOND PART
(hereinafter, collectively referred to as the "Parties")
WHEREAS:
A. Elgin County and Middlesex County issued a joint Request for Proposals (Reference No.
ADM 2017-1) to seek out and retain the services of a combined Municipal Ombudsman,
Closed Meeting Investigator, and Integrity Commissioner for each of the said municipal
corporations;
B. Section 223.13(1) of the Municipal Act, 2009, S_O. 2009, c.25, as amended (the "Act's,
authorizes municipalities to appoint an Ombudsman (hereafter, "Municipal Ombudsman")
who reports to council and whose function it is to investigate in an independent manner any
decision or recommendation made or act done or omitted in the course of the administration
of the appointing municipality, its local boards and specified municipally -controlled
corporations;
C. Section 239.2(1) of the Act authorizes a municipality to appoint an investigator (hereafter,
Closed Meeting Investigator") who has the function. of investigating in an independent
manner upon a complaint made to him or her by any person, whether a municipality or local
board has complied with Section 239 of the Act or a procedure by-law under subsection
238(2) of the Act in respect of a meeting or part of a meeting that was closed to the public,
and to report on such investigation;
D. Section 223.3(1) of the Act authorizes a municipality to appoint an Integrity Commissioner
(hereafter, "Integrity Commissioner") who reports to council and who is responsible for
performing in an independent manner functions assigned by the municipality with respect to,
(a) the application of the code of conduct for members of council, its local boards and/or their
committees;
(b) the application of procedures, rules and policies governing the ethical behavior of
members of council, its local boards and/or committees; or
(c) both of clauses (a) and (b).
E. Sections 223.13(2), 239.2(2) and 223.13(2) of the Act provide that a Municipal Ombudsman,
Closed Meeting Investigator and Integrity Commissioner may exercise the powers and
perform the duties assigned to him or her by the appointing municipality;
F. Sections 223.13(10), 239.2(8) and 223.4(1) of the Act provide that a Municipal Ombudsman,
Closed Meeting Investigator and Integrity Commissioner are not required to be an employee
of the appointing municipality;
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G. Section 223.4(5) of the Act does not preclude a municipally -appointed Integrity Commissioner
from recommending to council such remedial measures other than those measures listed in
223.4(5) to carry out the objectives of the procedures, rules and policies governing the ethical
behavior of members of council and/or local boards, so long as such measures are not
penalties and do not constitute offences;
H. It is anticipated that one or more local municipalities located within the territorial limits of Elgin
County may determine it to be in the public interest to engage in cooperative purchasing with
respect to a Municipal Ombudsman, Closed Meeting Investigator, and Integrity
Commissioner, under which arrangements the County will pay the initial retainer required of
the County and any one or more local municipalities and such local municipality or
municipalities would secure and pay for any fees and expenses for the services of such
Municipal Ombudsman, Closed Meeting Investigator, and Integrity Commissioner pursuant to
a separate agreement between each such local municipality and the said Municipal
Ombudsman, Closed Meeting Investigator, and Integrity Commissioner.
I. The County, on its own behalf and, to the extent set forth below, on behalf of the local
municipalities located within its territorial limits, deems it desirable to appoint and/or retain
Independent Resolutions Inc. as its respective Municipal Ombudsman, Closed Meeting
Investigator and/or Integrity Commissioner on an as needed basis, who may exercise the
powers and perform the duties assigned to him, as set out in this Agreement;
J. Independent Resolutions Inc. has the skills, abilities, and has consented to act as the
Municipal Ombudsman, Closed Meeting Investigator and Integrity Commissioner pursuant to
the terms and conditions set out in this Agreement; and
K. In appointing Independent Resolutions Inc. as Municipal Ombudsman and assigning powers
and duties as set out in this Agreement, the County has had regard to the importance of the
matters set out in section 223.13(5) of the Act, as required by section 223.13(3) of the Act.
NOW THEREFORE, in consideration of payment of the sum of ONE DOLLAR ($1.00) now paid
by each Party hereto to the other such Party and the mutual covenants and obligations set forth
herein, the receipt and sufficiency of which consideration is hereby acknowledged, the Parties
hereto agree as follows:
1 Interpretation
1.1 The above recitals are true and are hereby incorporated into this Agreement by
reference.
1.2 For the purposes of this Agreement, "committee" and "local board" shall have the
meanings as defined in section 1(1) of the Act, as amended or replaced.
1.3 For the purposes of this Agreement, "inquiry(ies)" shall have the meaning as defined in
the Public inquiries Act, 2009, SO 2009, c 33, Sch 6, as amended or replaced.
1.4 In this Agreement, "Communication" means any notice, demand, request, consent,
approval or other communication which is required or permitted by this Agreement to be
given or made by a party.
2 Appointment and Powers
2.1 Pursuant to the authority vested in sections 223.13(1), 239.2(1) and 223.3(1) of the Act
and thereby as a statutory officer, the County appoints Independent Resolutions Inc. as
its respective Municipal Ombudsman, Closed Meeting Investigator and Integrity
Commissioner (hereafter, collectively referred to as the "Independent Investigator"),
who may exercise the powers and perform the duties assigned to him below:
2.1.1 In the role of Municipal Ombudsman, the Independent Investigator shall on an as
needed basis and upon receipt of a request, investigate and report to County
Council in an independent manner on any decision or recommendation made or
act done or omitted in the course of the administration of the County and its local
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boards, excluding the Elgin St. Thomas Health Unit, in accordance with section
223.13(1-2) of the Act.
2.1.2 In the role of Closed Meeting Investigator, the Independent Investigator shall on
an as needed basis and upon receiving a complaint by any person, investigate in
an independent manner, any meeting or part of a meeting of the County and its
local boards, excluding the Elgin St. Thomas Health Unit, that is closed to the
public in accordance with section 239.2(1-2) of the Act; and
2.1.3 In the role of Integrity Commissioner, the Independent Investigator shall in
accordance with sections 223.3(1-2) of the Act:
(a) upon receiving a request by County Council, a member of County Council,
the County Clerk or a member of the public, conduct inquiries in an
independent manner with respect to adherence to the procedures, rules and
policies of the County and the County's local boards, excluding the Elgin St.
Thomas Health Unit;
(b) upon request made by County Council, a member of County Council or a
member of the public, conduct inquiries in an independent manner with
respect to the ethical behaviour of Councillors and Members of County
Council and the County's local boards, excluding the Elgin St. Thomas
Health Unit, in accordance with section 223.4 of the Act; and
(c) following any inquiry conducted pursuant to section 2.1.3(a -b) above, make a
report and recommendations to County Council or local boards as
applicable; and,
(d) without limiting that set forth above or herein and in respect of any such
applicable inquiry:
(i) The Independent Investigator, when conducting an inquiry in accordance
with section 2.1.3(b) of this Agreement and section 223.4 of the Act,
shall treat the procedures, rules and policies of the County and its local
boards as part of the code of conduct applicable for the purposes of
carrying out inquiries.
(ii) Following an inquiry pursuant to 2.1.3(b) herein and section 224.4 of the
Act, the Independent Investigator may make recommendations to
council and/or local boards, as set out in subsection 223.4(5) of the Act
and in addition, may recommend to County Council and the County's
local boards at his or her discretion, such other remedial measures
(including but not limited to apologies, return of property, etc.) necessary
to carry out the objectives set out in the procedures, rules and policies,
so long as such remedies are not penalties and do not constitute
offences do not provide that any Councilor or member is guilty of an
offence.
2.2 In addition to and in furtherance of the appointments and powers provided to the
Investigator in section 2.1 above, the County hereby confirms that the Independent
Investigator shall have the powers set out in Schedule "A" in his role as Ombudsman,
the powers set out in Schedule "B" in his role as Close Meeting Investigator, and the
powers set out in Schedule "C" in his role as Integrity Commissioner.
2.3 The County shall provide to the Independent Investigator the following documents for
the County and its local boards:
2.3.1 A certified copy of the County's procedural by-law;
2.3.2 A certified copy of the County's notice by-law,-
2.3.3
y-law;2.3.3 A certified copy of the procedures, rules and policies of the County and the
County's local boards;
2.3.4 A listing of applicable local boards subject to this Agreement; and
2.3.5 A certified copy of the County's Council Code of Conduct.
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3 Process and Duties
3.1 Every request for an investigation or inquiry of: (a) any decision or recommendation
made or act done or omitted in the course of the administration of the County or its local
boards; (b) any meeting or part of a meeting of the County or its local boards that is
closed to the public; (c) adherence to the procedures, rules and policies of the County or
its local boards; or (d) the ethical behavior of members of County Council or the
County's local boards, shall:
3.1.1 Be directed to the Independent Investigator;
3.1.2 Be in writing;
3.1.3 Include the reasons for the request;
3.1.4 Be signed; and
3.1.5 Include an address and telephone number of the person making the request or
complaint.
Should a request for an investigation or inquiry noted in section 3.1(a) -(d) be received
by any other person employed by the County other than the Independent Investigator,
that person shall forthwith notify the County Clerk who shall provide the requesting party
with the contact information of the Independent Investigator so that the requesting party
may make the request directly to the Independent Investigator.
3.2 Upon receipt of a request for investigation or inquiry, the Independent Investigator will
be provided immediate access to the following information by the County Clerk or any
other Department Head that the Investigator deems appropriate:
3.2.1 The original request or complaint;
3.2.2 A contact list for all members of County Council or local board relevant to the
request or complaint; and
3.2.3 Such other information or documentation that the Independent Investigator or
Independent Investigator's Delegate may from time to time deem relevant to the
investigation or inquiry.
3.3 The Independent Investigator shall fulfill the following duties:
3.3.1 To conduct investigations and inquiries from time to time upon receipt of a
request to determine compliance with the Act;
3.3.2 To report in writing on such investigations to County Council and local boards of
the County, as applicable;
3.3.3 To proceed without undue delay and with due diligence to investigate a
complaint, and to consider time to be of the essence with any and all
investigations or inquiries;
3.3.4 To proceed to investigate a complaint impartially and independently of the
County and its local boards;
3.3.5 To hear or obtain information from such persons in accordance with the Act;
3.3.6 To preserve the confidentiality of all matters of any investigation or inquiry that
require secrecy, save and except disclosure of such matters permitted by the Act
to establish grounds for report conclusions and/or recommendations;
3.3.7 To properly apply the doctrine of legal privilege, as applicable to County
Councillors and members of local boards;
3.3.8 If at any time during the course of an investigation or inquiry it appears to the
Independent Investigator that there may be sufficient grounds for a report or
recommendation that may adversely affect the County, a local board of the
County, a County Councilor, a municipally -controlled corporation or any other
individual person, the Independent Investigator shall give County Council the
local board, or the individual an opportunity to make representations respecting
the adverse report or recommendation, either personally or by counsel;
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3.3.9 To draft written report to County Council and/or local board, as applicable, with
appropriate recommendations; and
3.3.10 To dismiss complaints that are without merit or deemed to be vexatious and
prepare a report confirming the non -meritorious nature of such complaints.
3.4 Without limiting and in addition to the duties provided for in section 3.3 above, the
County hereby confirms that the Independent Investigator shall be subject to the rules
and shall have the duties set out in Schedule "A" in his role as Ombudsman, set out in
Schedule `B" in his role as Closed Meeting Investigator, and set out in Schedule "C"
in his role as Integrity Commissioner.
3.5 Upon receipt by the County or a local board, a report of the Independent Investigator
shall be part of the public record.
4 Fees
4.1 The County shall pay the Independent Investigator an Annual Retainer of THREE
THOUSAND DOLLARS ($3,000.00) in respect of services contemplated by this
Agreement to the County. Additionally and on behalf of each and every participating
local municipality located within the geographic limits of Elgin County, the County shall
pay the Independent Investigator an Annual Retainer of THREE THOUSAND DOLLARS
($3,000.00) or the appropriate portion thereof based upon the nature and extent of
services to be provided to each such local municipality, whichever is lower.
4.2 The County shall pay the fees and expenses of the Independent Investigator at a rate of
ONE HUNDRED AND FIFTY DOLLARS ($150.00) per hour, plus applicable taxes and
reasonable disbursements, during such time as the Independent Investigator is
performing the duties set out in this Agreement. The Independent Investigator agrees
that the above rate shall be charged only for such time that he is actively investigating a
complaint and preparing/presenting a report to County Council or local board. Any
participating local municipality shall pay the hourly rate of ONE HUNDRED AND FIFTY
DOLLARS ($150.00) through a separate agreement and in respect of services
contemplated by this Agreement but relating to matters directly involving that specific
local municipality.
5 Term of Agreement
5.1 Subject to the termination and amendment provisions of this Agreement (sections 8 and
9), the term of this Agreement shall commence at 12:00 a.m. on January 1, 2018 and
expire at 11:59 p.m. on December 31, 2020 ("Term").
5.2 At least six (6) months prior to the end of the Term, the Parties agree to discuss renewal
terms. If no agreement is reached prior to the last day of the Term, this Agreement shall
expire unless the Parties mutually agree in writing to extend the negotiation period for
sixty (60) days ("Extension Period"). In the event renewal terms have not been agreed
to by the Parties at the end of the Extension Period, this Agreement shall terminate
immediately on the last day of the Extension Period.
6 Indemnification and Insurance
6.1 Subject to any statutory provision in respect of such obligation, the County shall hold
harmless and indemnify the Independent Investigator, or any person acting under
instructions therefrom, from all claims, demands, liability, and costs incurred or suffered
in relation to or connection with the defence of a proceeding if such proceeding relates
to an act done in good faith in the performance or intended performance of a duty,
authority, or power contemplated by this Agreement or the legislation referred to herein
or an alleged neglect or default in the performance in good faith of such duty, authority,
or power.
6.2 Throughout the term of this Agreement, the Independent Investigator, at its expense,
shall secure and maintain in force policies of insurance providing coverages for
commercial general liability and errors and omissions, both of terms and conditions
acceptable to the County and to be in effect and providing coverage while the
Independent Investigator is acting as contemplated by this Agreement, which policies
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shall be underwritten by an insurer licensed to conduct business in the Province of
Ontario and, further thereto, shall include, among others, the following terms:
6.2.1 a limit of liability of not less than $2,000,000.00 per occurrence;
6.2.2 the County shall be named as an additional insured;
6.2.3 the policy or policies shall contain a provision for cross -liability in respect of the
named insured;
6.2.4 non -owned automobile coverage with a limit of at least $1,000,000.00, including
contractual non -owned coverage;
6.2.5 products and completed operations coverage (broad form) with an aggregate
limit of not less than $2,000,000.00; and,
6.2.6 that thirty (30) days prior notice of an alteration, cancellation, or material change
in policy terms, which reduces coverage, shall be given in writing to the County.
Within fifteen (15) days of execution of this Agreement, the Independent Investigator
shall provide, and thereafter replace as is required, adequate proof of the said policy or
policies of insurance or any renewal or replacement thereof, including but not
necessarily limited to a then current Certificate of Insurance or true copy thereof.
6.3 During the term of this Agreement and upon receipt of payment of the annual premiums
for the insurance coverages referred to in section 6.2 above, the County shall reimburse
the Independent Investigator an amount equal to fifty percent (50%) of the paid premium
for errors and omissions coverage only, plus taxes accruing thereto.
7 Dispute Resolution
7.1 Upon written request to resolve any disputes arising from this Agreement which is sent
by one party to another, the parties hereby agree to resolve all disputes pursuant to this
section. Upon receipt by the receiving party of a written request to resolve disputes, the
Parties shall first attempt to resolve all disputes by way of formal negotiation between
the Parties and their appointed representatives. If the disputes cannot be settled within
thirty (30) days from the receipt of the written request to resolve disputes by the
receiving party, then the Parties shall enter into a structured negotiation on a without
prejudice basis with the assistance of a mediator appointed by them. If the disputes
cannot be settled within ninety (90) days from the receipt of written request to resolve
disputes by the receiving party, or such longer period as may be agreed to by the
Parties, the Parties shall, refer the matter forthwith to an arbitration which shall finally
resolve the dispute(s). The aforementioned arbitration shall be conducted in accordance
with the Ontario Arbitration Act, 9991, SO 1991, c 17, as amended or replaced.
8 Termination
8.1 This Agreement may be terminated by any party on ninety (90) days written notice to
the other party, provided that any investigations or inquiries commenced prior to the
termination date shall be completed pursuant to this Agreement and all related fees
shall be paid as set out in the Agreement.
9 Amendment
9.1 No amendment, discharge, modification, restatement, supplement, or termination of this
Agreement is binding unless it is in writing and executed by the Parties.
9.2 The Parties hereto agree that, in the event of legislative changes affecting the
provisions of this Agreement, including but not limited to changes contemplated by Bill
68 and potentially relating to, among other things, the duties and powers of a Municipal
Ombudsman, Closed Meeting Investigator, and/or Integrity Commissioner and further
reflecting upon Fees chargeable by and payable to such officials, they will negotiate in
good faith and execute an agreement to account for any such legislative changes, and
the effects thereof, while otherwise maintaining the spirit and intent of this Agreement.
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10 Notices
10.1 Any Communication between the Parties must be in writing and either be:
(a) delivered personally or by courier;
(b) sent by prepaid registered mail; or
(c) transmitted by facsimile, e-mail or functionally equivalent electronic means of
transmission, and
in any such circumstances, all charges (if any) prepaid.
Any Communication must be sent to the intended Party at its address for service listed
on the signature pages of this Agreement or to any other address as any party may at
any time advise the other by Communication given or made in accordance with this
section. Any Communication delivered to a party to whom it is addressed will be
deemed to have been given or made and received on the day it is delivered at that
party's address, provided that if that day is not a business day then the Communication
will be deemed to have been given or made and received on the next business day. Any
Communication transmitted by facsimile, e-mail or other functionally equivalent
electronic means of transmission will be deemed to have been given or made and
received on the day on which it is transmitted; but if the Communication is transmitted
on a day which is not a business day or after 4:OOpm (local time of the recipient), the
Communication will be deemed to have been given or made and received on the next
business day.
11 Assignment
11.1 The Parties agree that the Independent Investigator shall not assign or alienate, in
whole or in part, this Agreement or the power or authority granted hereunder without the
prior written approval of the County, which approval may be unreasonably withheld.
12 Entire Agreement
12.1 The Parties agree this Agreement, including any Schedule hereto, constitutes the entire
agreement and consensus between the Parties as of the date hereof. There are not and
shall not be any verbal statements, representations, warranties, undertakings, or other
agreements relating to the specific power or authorization contemplated herein as
between the Parties.
13 Severability
13.1 Each section of this Agreement is distinct and severable. If any section of this
Agreement, in whole or in part, is or becomes illegal, invalid, void, voidable or
unenforceable in any jurisdiction by any court of competent jurisdiction, the illegality,
invalidity or unenforceability of that section, in whole or in part, will not affect:
(a) the legality, validity or enforceability of the remaining sections of this Agreement, in
whole or in part; or
(b) the legality, validity or enforceability of that section, in whole or in part, in any other
jurisdiction.
14 Governing Law
14.1 This Agreement is governed by, and is to be construed and interpreted in accordance
with the laws of the Province of Ontario and the laws of Canada applicable in that
Province.
15 Counterparts
15.1 This Agreement may be executed and delivered by the Parties in one or more
counterparts, each of which will be an original, and each of which may be delivered by
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facsimile, e-mail, or other functionally equivalent electronic means of transmission, and
those counterparts will together constitute one and the same instrument.
16 Enurement
16.1 The Parties hereto agree that this Agreement shall enure to the benefit of and be
binding upon the Parties hereto and their respective heirs, executors, administrators,
and assigns.
IN WITNESS WHEREOF this Agreement has been executed by the Parties hereto on the date(s)
set out below and the Parties agree that this Agreement shall be effective on the date set out at
the top of page one (1) of this Agreement.
CORPORATION OF THE COUNTY OF ELGIN
Date: February _Lo , 2018
n
Address for Service: Per:
Attn: County Clerk Name: David Marr
Elgin Administrative Building Position: Warden
450 Sunset Drive
St. Thomas, ON N5R 5V1
Per: Lei l�L�
Nam,#: Julie Gonyou
Position: Chief Administrative Officer
We have authority to bind the Corporation
INDEPENDENT RESOLUTIONS INC.
Date: February2018
Address for Service: Per:
17 Hummingbird Lane Name: Mark M Ibonald
St. Thomas, ON N5R 61-8 Position:itPy� �~
I have authority to bind the Corporation
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SCHEDULE "A"
ADDITIONAL RULES & DUTIES: MUNICIPAL OMBUDSMAN
(By Reference To Applicable Statutory Authorities)
Municipal Act, 2009, S.O. 2001, c.25, as amended
Same, Ombudsman
223.13(4) In carrying out his or her functions under subsection (1), the Ombudsman shall have
regard to, among other matters, the importance of the matters listed in subsection (5).
Same
(5) The matters referred to in subsections (3) and (4) are,
(a) the Ombudsman's independence and impartiality;
(b) confidentiality with respect to the Ombudsman's activities; and
(c) the credibility of the Ombudsman's investigative process.
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.
Decisions not reviewable
(7) Nothing in this Part empowers the Ombudsman to investigate any decision,
recommendation, act or omission,
Delegation
Same
(a) in respect of which there is, under any Act, a right of appeal or objection, or a right to
apply for a hearing or review, on the merits of the case to any court, or to any tribunal
constituted by or under any Act, until that right of appeal or objection or application
has been exercised in the particular case, or until after any time for the exercise of
that right has expired; or
(b) of any person acting as legal adviser to the municipality, a local board or a
municipally -controlled corporation or acting as counsel to any of them in relation to
any proceedings. 2006, c. 32, Sched. A, s. 98.
(8) The Ombudsman may delegate in writing to any person, other than a member of council,
any of the Ombudsman's powers and duties under this Part.
(9) The Ombudsman may continue to exercise the delegated powers and duties, despite the
delegation.
Investigation
223.14 (1) Every investigation by the Ombudsman shall be conducted in private.
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 municipally -
controlled 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.
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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 and, for the purpose, references in section 19
of that Act to "any public sector body" are deemed to be references to "the municipality, a
local board or a municipally -controlled corporation".
(Secondary Statutory Reference Set Forth Immediately Below)
Ombudsman Act, R.S.O. 1990, c. 0.6, as amended
Evidence
19. (1) The Ombudsman may from time to time require any officer, employee
or member of any public sector body 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.
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
public sector body 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.
Secrecy
(3) Subject to subsection (4), no person who is bound by the provisions
of any Act, other than the Public Service of Ontario Act, 2006, the
Municipal Act, 2001 or the City of Toronto Act, 2006, as the case may
be, 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.
Providing personal information despite privacy Acts
Idem
(3.1) A person who is subject to the Freedom of Information and Protection
of Privacy Act, the Municipal 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)_
(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.
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.
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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.
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.
Prosecution
Fees
L81 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.
LZ 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.
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.
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.
Section prevails
(3) This section prevails over the Municipal Freedom of Information and Protection of Privacy
Act.
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.
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.
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.
IniSals
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Effect on other rights, etc.
223.18The 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.
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SCHEDULE "B"
ADDITIONAL RULES & DUTIES:
CLOSED MEETING INVESTIGATOR
(By Reference To Applicable Statutory Authorities)
Municipal Act, 2001, S.D. 2001, c.25, as amended
Meetings open to public
239. (1) Except as provided in this section, all meetings shall be open to the public.
Exceptions
(2) A meeting or part of a meeting may be closed to the public if the subject matter being
considered is,
(a) the security of the property of the municipality or local board;
(b) personal matters about an identifiable individual, including municipal or local board
employees;
(c) a proposed or pending acquisition or disposition of land by the municipality or local
board;
(d) labour relations or employee negotiations;
(e) litigation or potential litigation, including matters before administrative tribunals,
affecting the municipality or local board;
(f) advice that is subject to solicitor -client privilege, including communications necessary
for that purpose;
(g) a matter in respect of which a council, board, committee or other body may hold a
closed meeting under another Act.
(h) information explicitly supplied in confidence to the municipality or local board by
Canada, a province or territory or a Crown agency of any of them;
(i) a trade secret or scientific, technical, commercial, financial, or labour relations
information, supplied in confidence to the municipality or local board, which, if
disclosed, could reasonably be expected to prejudice significantly the competitive
position or interfere significantly with the contractual or other negotiations of a person,
group of persons, or organization;
(j) a trade secret or scientific, technical, commercial or financial information that belongs
to the municipality or local board and has monetary value or potential monetary value;
or,
(k) a position, plan, procedure, criteria, or instruction to be applied to any negotiations
carried on or to be carried on by or on behalf of the municipality or local board.
Other criteria
(3) A meeting or part of a meeting shall be closed to the public if the subject matter being
considered is,
(a) a request under the Municipal Freedom of Information and Protection of Privacy Act, if
the council, board, commission or other body is the head of an institution for the
purposes of that Act; or
(b) an ongoing investigation respecting the municipality, a local board or a municipally -
controlled corporation by the Ombudsman appointed under the Ombudsman Act, an
Ombudsman referred to in subsection 223.13 (1) of this Act, or the investigator
referred to in subsection 239.2 (1).
Educational or training sessions
(3.1) A meeting of a council or local board or of a committee of either of them may be closed to
the public if the following conditions are both satisfied:
1. The meeting is held for the purpose of educating or training the members.
2. At the meeting, no member discusses or otherwise deals with any matter in a way that
materially advances the business or decision-making of the council, local board or
committee.
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Resolution
(4) Before holding a meeting or part of a meeting that is to be closed to the public, a
municipality or local board or committee of either of them shall state by resolution,
(a) the fact of the holding of the closed meeting and the general nature of the matter to be
considered at the closed meeting; or
(b) in the case of a meeting under subsection (3.1), the fact of the holding of the closed
meeting, the general nature of its subject -matter and that it is to be closed under that
subsection.
Open meeting
(5) Subject to subsection (6), a meeting shall not be closed to the public during the taking of a
vote.
Exception
(6) Despite section 244, a meeting may be closed to the public during a vote if,
(a) subsection (2) or (3) permits or requires the meeting to be closed to the public; and
(b) the vote is for a procedural matter or for giving directions or instructions to officers,
employees or agents of the municipality, local board or committee of either of them or
persons retained by or under a contract with the municipality or local board.
Record of meeting
Same
(7) A municipality or local board or a committee of either of them shall record without note or
comment all resolutions, decisions and other proceedings at a meeting of the body,
whether it is closed to the public or not.
(8) The record required by subsection (7) shall be made by,
(a) the clerk, in the case of a meeting of council; or
(b) the appropriate officer, in the case of a meeting of a local board or committee.
Record may be disclosed
(9) Clause 6 (1) (b) of the Municipal Freedom of Information and Protection of Privacy Act
does not apply to a record of a meeting closed under subsection (3.1).
Same, investigator
239.2 (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).
Same
(5) The matters referred to in subsections (3) and (4) are,
Delegation
Same
(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.
(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.
(7) An investigator may continue to exercise the delegated powers and duties, despite the
delegation.
Application
(9) Subsection 223.13(6) and sections 223.14 to 223.18 apply with necessary modifications
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with respect to the exercise of functions described in this section.
(Secondary Statutory Reference Set Forth Immediately Below)
Powers paramount
223.13 (6) The powers conferred on the Ombudsman under this Part may be
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 if is
shall be challenged, reviewed, quashed or called in question.
Investigation
223.14 (1) Every investigation by the Ombudsman shall be conducted in private.
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 municipally -controlled
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.
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
and, for the purpose, references in section 19 of that Act to "any
public sector body" are deemed to be references to "the municipality,
a local board or a municipally -controlled corporation"
(Further Secondary Statutory Reference Set Forth Immediately Below)
Ombudsman Act, R.S.O. 1990, c. 0.6, as amended
Evidence
19. (1) The Ombudsman may from time to time require any officer, employee
or member of any public sector body 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.
Examination under oath
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
public sector body 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.
Secrecy
(3) Subject to subsection (4), no person who is bound by the provisions
of any Act, other than the Public Service of Ontario Act, 2006, the
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Municipal Act, 2009 or the City of Toronto Act, 2006, as the case may
be, 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.
Providing personal information despite privacy Acts
Idem
(3.1) A person who is subject to the Freedom of Information and Protection
of Privacy Act, the Municipal 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)•
lJ4 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.
Privileges
L51 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.
Protection
L) Except on the trial of any person for perjury in respect of the person's
swom 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.
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.
Prosecution
Fees
(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.
(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.
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.
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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.
Section prevails
(3) This section prevails over the Municipal Freedom of Information and Protection of Privacy
Act.
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.
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.
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.
Effect on other rights, etc.
223.18The 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.
Report and recommendations
239.2 (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.
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.
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SCHEDULE "C"
ADDITIONAL RULES & DUTIES:
INTEGRITY COMMISSIONER
(By Reference To Applicable Statutory Authorities)
Municipal Act, 2001, S.O. 2001, c.25, as amended
Delegation
223.3 (3) The Commissioner may delegate in writing to any person, other than a member of council,
any of the Commissioner's powers and duties under this Part.
Same
(4) The Commissioner may continue to exercise the delegated powers and duties, despite the
delegation.
Powers on inquiry
223.4 (2) The Commissioner may elect to exercise the powers under sections 33 and 34 of the
Public Inquiries Act, 2009, in which case those sections apply to the inquiry.
(Secondary Statutory Reference Set Forth Immediately Below)
Public Inquiries Act, 2009, SO 2009, c 33, Sch 6, as amended
Definition
33, (1) In this section,
'inquiry" includes a determination, examination, hearing, inquiry,
investigation, review or other activity to which this section is applicable.
Definition
34, (1) In this section,
Application
Information
Same
"inquiry" includes an inquiry or other activity to which this section is
applicable.
(2) This section applies to,
(c) an inquiry conducted under subsections 223.4 (2) and 223.12 (2)
of the Municipal Act, 2001; and
(3) The municipality and its local boards shall give the Commissioner such information as the
Commissioner believes to be necessary for an inquiry.
(4) The Commissioner is entitled to have free access to all books, accounts, financial records,
electronic data processing records, reports, files and all other papers, things or property
belonging to or used by the municipality or a local board that the Commissioner believes to
be necessary for an inquiry.
Penalties
(5) The municipality may impose either of the following penalties on a member of council or of
a local board if the Commissioner reports to the municipality that, in his or her opinion, the
member has contravened the code of conduct:
1. A reprimand.
2. Suspension of the remuneration paid to the member in respect of his or her services
as a member of council or of the local board, as the case may be, for a period of up to
90 days.
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Paae 1J9
(6) The local board may impose either of the penalties described in subsection (5) on its
member if the Commissioner reports to the board that, in his or her opinion, the member
has contravened the code of conduct, and if the municipality has not imposed a penalty on
the member under subsection (5) in respect of the same contravention.
Duty of confidentiality
223.5 (1) The Commissioner and every person acting under the instructions of the Commissioner
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.
Exception
(2) Despite subsection (1), information may be disclosed in a criminal proceeding as required
by law or otherwise in accordance with this Part.
Section prevails
(3) This section prevails over the Municipal Freedom of Information and Protection of Privacy
Act.
Report to council
223.6 (1) If the Commissioner provides a periodic report to the municipality on his or her activities,
the Commissioner may summarize advice he or she has given but shall not disclose
confidential information that could identify a person concerned.
Report about conduct
(2) If the Commissioner reports to the municipality or to a local board his or her opinion about
whether a member of council or of the local board has contravened the applicable code of
conduct, the Commissioner may disclose in the report such matters as in the
Commissioner's opinion are necessary for the purposes of the report.
Publication of reports
(3) The municipality and each local board shall ensure that reports received from the
Commissioner by the municipality or by the board, as the case may be, are made available
to the public.
Testimony
223.7 Neither the Commissioner nor any person acting under the instructions of the Commissioner is
a competent or compellable witness in a civil proceeding in connection with anything done
under this Part.
Reference to appropriate authorities
223.8 If the Commissioner, when conducting an inquiry, determines that there are reasonable
grounds to believe that there has been a contravention of any other Act or of the Criminal Code
(Canada), the Commissioner shall immediately refer the matter to the appropriate authorities
and suspend the inquiry until any resulting police investigation and charge have been finally
disposed of, and shall report the suspension to council.
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