STANDING COMMITTEE ON FINANCE AND ECONOMIC AFFAIRS
COMITÉ PERMANENT DES FINANCES ET DES AFFAIRES ÉCONOMIQUES
Thursday 5 December 2002 Jeudi 5 décembre 2002
Thursday 5 December 2002 Jeudi 5 décembre 2002
The Chair (Mr Joseph Spina): Now that we have quorum, this meeting will come to order. We meet today with respect to clause-by-clause consideration of Bill 151, An Act respecting the Toronto Waterfront Revitalization Corporation. This is a Ministry of Finance bill. We begin with government motion number 1.
Mr Simons: Mr Spina is correct. "Land" really means land; it doesn't include water. So we are proposing to amend section 1 and substitute "area" for "water" to make it clear that when designating the area the corporation can work in, it can include water or land under water.
Mr Simons: That'll be prescribed by regulation, so we wanted to make sure that the regulation could include land and water or land under water or even watercourses that may fall within the boundaries.
"`provincial government' means Her Majesty in right of Ontario as represented by the Minister of Finance or such other member of the executive council as may be designated under the Executive Council Act to administer this act."
Mr Simons: In discussing the bill with the federal government, they put this forward as a suggested change so we just brought it forward, and we made the "provincial government" definition parallel their change. It just provides more flexibility in who the responsible minister might be.
Mr John O'Toole (Durham): For clarification, I wonder if Mr Phillips would like to put on the record what he thinks it's doing, because I have some difficulty too. Do you think this is sort of Machiavellian? What were you implying, Mr Phillips? I've read it too. I seem to see it as trying to parallel the federal interpretation.
Mr Phillips: First off, I want to find out what it is doing and then I'll tell you what I think it's doing. All I'm saying to you, Mr O'Toole, is that you presented this bill a year ago, December 11, 2001. At 5 o'clock last night you proposed these amendments. It's now a few hours later. I'm just trying to figure it out -- a year ago you thought this was right; today you think you've got to change it. I want somebody to explain to me what the change is. If you think that's inappropriate --
Mr Simons: Going in, in the first reading version of Bill 151, we defined "federal government" to mean "the Governor General in Council." That's basically the federal head. In "provincial government," we had a corresponding meaning, meaning the Lieutenant Governor in Council. In discussions with the federal government over the course of when we first introduced the bill, the federal government proposed a change, and we agreed to make the change. We just made the provincial government definition parallel the federal one.
Mr Phillips: My only question is this: the current wording before this amendment presumably meant that the government would do something. Does this amendment allow the province to do anything different than the current way the bill reads? Forget the federal government.
Mr Simons: Basically, the province is changing the definition from Lieutenant Governor in Council, which means it would be the Premier who would decide the responsible minister, to where it designates that the Minister of Finance will be the minister or such other minister as the executive council may designate. There's full flexibility in the current wording in the first reading version of the bill. The proposed amendment would assign responsibility to the Minister of Finance but also notes that it could be some other minister.
Mr Phillips: I'm sure it is. I'm sure that Mr Eves likes it. I just want to know what we, the legislative committee, are dealing with. I'm sure it's agreeable to the government or they wouldn't propose it. So if I can just paraphrase it, then, previously it didn't designate the Minister of Finance as the minister responsible; this does. Fine.
"(4.1) Subsection 134(1) (standard of care) and section 136 (indemnification) of the Business Corporations Act apply, with necessary modifications, to the corporation and to the members of its board of directors."
Mr Phillips: Yes, I do. This flowed out of Mayor Lastman's recommendations, where they felt the conflict-of-interest provisions in the existing bill were inappropriate and that we needed stronger conflict-of-interest provisions.
Frankly, I have two major concerns with the bill. One is the conflict of interest and the other -- we'll deal with it later -- is public meetings. I will say that we will be voting in favour of the bill but we will be registering these two major concerns.
I believe it's extremely important that the waterfront revitalization go forward. I think that for the province of Ontario and for the future of the city of Toronto it's an enormously important project. It's vital.
I can already see that it's off to a bad start. In my opinion, if the people on the board aren't above reproach in any concerns about conflict of interest, it puts the board in a tough position. I'll be slightly more specific. The existing conflict of interest allows these things to happen. One is that the chairman of Ontario Power Generation, a well-regarded, reputable individual, without question, well regarded in the business community and no hint of impropriety, is also on the board of the Toronto waterfront. I believe there's an application to restart the Hearn generating plant on the waterfront. So those people who may be looking for ways to criticize the Toronto Waterfront Revitalization Corp can say, "Listen, how can somebody on the waterfront also be chair of Ontario Power Generation?" Similarly, there's an individual on the board who is also on the board, I think, of the -- is it called the Harbourfront commission or the Toronto Port Authority? -- who is a reputable individual and well regarded, all those things. But I gather the Toronto Waterfront Revitalization Corp took a position that the Toronto Island airport expansion was consistent with the waterfront revitalization corp. I believe that individual declared a conflict of interest, but we still have an individual who is on that board and on this board.
I predict that if we don't have tighter conflict-of-interest guidelines, the critics of the waterfront will be given, I think, a club. I just think that we would be wise to adopt the recommendation of the city of Toronto and have the municipal conflict-of-interest guidelines, which are more restrictive than the business corporations guidelines, apply. As I say, I predict that if we don't do this, one of the pitfalls of the waterfront revitalization we'll run into very quickly is that we give people a chance to argue against it not on the basis of content but on the basis of process.
Mr Beaubien: First of all, I would like maybe to get an interpretation from legal counsel, but also I would like to table a couple of documents dealing with the code of conduct for contractors and suppliers and conflict-of-interest declarations. The other one is a code of conduct and conflict-of-interest procedures for directors, officers and other employees. I'd like to table these for the committee members.
Mr Beaubien: Basically, I would like your comment as to what the proposed Liberal amendment would or would not do that the present subsection 2(4) does in the bill. What is the difference between the two?
Mr Simons: I can go through briefly what I believe to be the difference between the two. Under the Business Corporations Act, the scope applies to directors and officers. Under the Municipal Conflict of Interest Act, it would apply to any member of a council or a local board. Under the Municipal Conflict of Interest Act, it deals with known pecuniary interests, either direct or indirect, of parents, spouses, same-sex partners and children. In terms of determination of a conflict, under the Business Corporations Act, it deals with a party to a material contract or transaction, whether existing or proposed, or is a director or officer or has a material interest in another party to a material contract or transaction. Under the municipal code, the determination of conflict means any direct or indirect pecuniary interest. It's defined to mean shareholding, a directorship of a private company, a controlling interest or directorship of a public corporation. So you get a sense of how the conflicts are determined. It's a little bit different.
Mr Beaubien: Mr Phillips alluded to the fact that a person who is the chair of a corporation sitting on this board could potentially be in conflict of interest because of a certain generating station that he mentioned. I would imagine that could apply to many individuals who are sitting on different boards. I would imagine that under conflict of interest that person can declare and step aside from the discussion.
Mr Simons: The Business Corporations Act requires conflicts to be disclosed in writing, the conflict has to be placed on the record in the board minutes, and there has to be some sort of notice of this. Under the Municipal Conflict of Interest Act, if it's a public meeting, the member must disclose the interest and its nature, must not take part in discussing or voting on the matter and must not try to influence others' votes, and the disclosure must be entered into the minutes or put on the public record at the next public meeting.
But the one thing to note as we go along here is that the corporation itself has developed a code that's even stronger than what the minimum standard is under this proposed legislation. So the corporation has gone above and beyond what's required. In fact, it goes above and beyond what's required in the Municipal Conflict of Interest Act as well. They've developed their own by resolution and it's a very strong code. I think a copy of that is being circulated around. That's just one thing to note.
Mr O'Toole: I think it's an important section of the bill. I would certainly say that. I don't have the experience, except having served on municipal council and here, which I'm familiar with. I wouldn't for an instant challenge Mr Phillips, but is he correct in his assumption or implication with this amendment that someone wrote for him -- I imagine someone prepared it for him -- that the Municipal Conflict of Interest Act is in fact stronger than the provincial one? The reason I'm asking that is, if that's the case, in the current reports in the paper on MFP and the city of Toronto, it appears to me they had some serious problems already. What oversight is actually at the municipal level to enforce or manage the implied stronger municipal conflict of interest law? I don't see it that way. I think this actually weakens it. It's unfortunate, and I'm pleased to have Mr Phillips respond, but as I look at it here -- in fact if you look at the following section, under subsection (5), it says the board chair will be jointly appointed, as I understand it. Perhaps you could respond. Is it true that the Municipal Conflict of Interest Act is stronger, or is that just a general assumption by the mover of the motion?
Mr Simons: It is broader in scope, in terms of the nature of the conflict. There are also consequences and sanctions under the Municipal Conflict of Interest Act where an elector can bring the matter to court, or the court can order that a member's seat be vacated, or it could disqualify the member from being a member for seven years if the contravention resulted in some sort of financial gain and may require financial restitution be made as well.
Mr Simons: It is stronger. Under the Business Corporations Act, if a director or officer fails to disclose an interest, the corporation or shareholder may apply to court to set aside the contract or require the director to account for any profits and the court might take whatever order it thinks fit. So the courts retain some broad authority there as well.
Mr Sampson: I get some sense from Mr Phillips that what he would like to do is to make sure that conflicts, probably more in the perceived category than the actual, are somehow disclosed and brought into the open so that they can be dealt with by either the person who has the perceived or otherwise conflict or by those who hold the perception. I believe we'll be seeing an amendment down the road that will deal with opening up the proceedings of this corporation to more public scrutiny, which I think is good. In the context of more of a public scrutiny of the operations of this board and its business plans etc, I would be comfortable to stick with the current provisions, which deal with the Business Corporations Act, implications of conflict and definitions of conflict. I think both the Business Corporations Act and the Municipal Act are trying to deal with perceived or actual conflicts. They do it, I would argue, in perhaps different ways, but they're both trying to deal with the same thing. The remedies are different, obviously, because the remedies for somebody who is elected, ie, barring them from being elected again for another seven years, are different from the remedies that a shareholder or a person who has an interest in a corporation would expect, and that would be barring somebody from being on a board or taking them to court for recovery of the monies that resulted from the conflict.
I understand what Mr Phillips is trying to do. I would argue that what we're trying to do is the same thing. He has just picked a different route. I'm not too sure it's as perfect as one would argue, and I suspect neither is the Business Corporations Act totally perfect in this area. But exposing the proceedings to public scrutiny I think will help perfect it, so I am prepared to stick with the existing bill.
Mr Phillips: I'm trying to respond to the strong recommendation of one of our partners, the city of Toronto. We have two partners in this, along with the province, but the province writes the legislation. We had Mayor Lastman here last week saying to us they've got two big concerns. One is, the meeting should be public -- and by the way, the amendments that are proposed don't make the meetings public; the board meetings will not be public, according to the government. As I look ahead at the amendments here, they'll make their plans public after they've determined them in private meetings.
First, I'm trying to respond to the two strong recommendations of the city of Toronto, who do have concerns about the conflict. I didn't write this amendment. Like Mr O'Toole was familiar, I said to the legislative counsel, "Here's what I'm trying to achieve. Will you legally prepare an amendment?" This wasn't written by myself; it was written by legislative counsel. But Mr O'Toole may not understand this process.
I guess I use the two examples. If that's acceptable to the government, those two appointments, I think we're making a mistake. I just think we're opening ourselves up to, rather than people debating the merits of the plans, be saying, "Listen, that plan reflects that because that person has another interest on the board." I think we make a mistake allowing ourselves to do that.
This amendment was designed to respond to Mayor Lastman's two big concerns. I asked legislative counsel to draft an amendment that would do that. I assume this amendment does that, and I assume the government doesn't like it.
Mr Sampson: Just one more comment, Mr Spina, to Mr Phillips' point. You say that one of our partners in this has suggested a tightening up of the conflict rules. He has already had that implication and that effect on the rules that have been established by the corporation that we have in front of us here. In fact, all these rules that I've been able to see far exceed -- probably take the best of both worlds: the Corporations Act and the Municipal Conflict of Interest Act.
The conflict rules of the corporation, should they choose to exceed this limit, will be set by the partners, one of which Mr Lastman is a representative; the province is another, and the feds are another. They can choose, as they already have demonstrated, to exceed those conflict rules. I wouldn't want to write in legislation anything that would encourage them to weaken that, and I would worry that your amendment would indicate that.
Mr Beaubien: How is this going to make sure that there is no conflict as opposed to what we have in there? The amendment that you're proposing, how is it going to strengthen discouraging somebody from having a conflict or a potential or perceived conflict?
Mr Phillips: I actually take Mayor Lastman at his word. They work with this conflict of interest, and their recommendation is that it would strengthen the conflict-of-interest provisions. I have some confidence that their counsel made those two recommendations. They wanted it included in the legislation; I proposed it. I think that the combination may in fact strengthen. I go back, though for the life of me, I think the government is asking for difficulty -- if the appointments they've made are quite acceptable. I think we're going to be into ongoing concerns about conflict on the waterfront.
Mr Beaubien: I think it's fine to say that the government is asking for difficulties, but I asked the question, how is your amendment going to strengthen the conflict of interest? You said, "Well, that's what Mr Lastman has asked for." I'm not a lawyer, but I think the legal people are suggesting that this is stronger than the present conflict of interest that we have at the municipal level. Having sat on municipal council for 15 years, I'm quite willing to abide by that. I have to take some trust into the legal advice that we're getting, that the amendment is stronger than what we have right now. It's fine to say that you can appoint anybody under any piece of legislation, and there's always a potential for somebody to go offbeat.
Mr Simons: The code of conduct that the interim corporation has adopted, and I'm assuming will carry forward if this bill is passed as the permanent corporation, goes above and beyond the current requirement in the --
Mr Phillips: That may very well be the case, but the legislation doesn't, and that's my point: they may have adopted at this point in time this code of conduct, but we're asked to approve a bill, not the code of conduct.
Mr Simons: To that point, Mr Phillips, the people who will make the decision to lower the bar, in your view, of the code of conduct that's currently in place in the interim corporation will be one of the partners or all the partners working together, of which Mr Lastman is one of the representatives. So if he chooses to take that standard down, as we're hearing from council, then he would be part of the group that would make that decision. It's in his hands how tight he wants to make these rules.
By the way, I don't understand. I think your point is, and I don't think it's correct, that if we adopted your resolution, certain members of the board would have to remove themselves permanently from the board or not be eligible for appointment to the board. That's not the case, as you know. It's just that they would be excluded from certain meetings that would deal with interests in which they have a perceived conflict, which is the exact same effect as if the amendment didn't carry and the current wording of the bill remained.
Mr Phillips: -- that the code of conduct voluntarily adopted by the board is stronger. My point is, we are writing legislation that is designed to direct the board. The board may at this point in time have a code of conduct that's stronger or they may have one that's weaker. I don't think that should be left to the board. That's my point.
Mr Simons: This provision came as a result of the discussions, negotiations that went on between the province, the federal government and the city. This is a recommendation that came forward from the city. It clarifies one of the objects of the corporation. The object would now read, if this motion succeeded, "To implement a plan that enhances the economic, social and cultural value of the land in the designated waterfront area and creates an accessible and active waterfront for living, working and recreation, and to do so in a fiscally and environmentally responsible manner." This is one of the corporate objects.
Mr David Christopherson (Hamilton West): A question to the government members: can I ask why you would use such weak language as "have regard to," which really means as little or as much as they may determine? You can simply glance at something or make a reference to it, acknowledge that somewhere in the world it exists and you've now given regard to it. Can I ask why you wouldn't choose words to the effect of "be consistent with," recognizing that the overall development of the municipality is the democratic responsibility of the council?
Mr Beaubien: It's probably more of a legal answer that you need, but I think it's very commonly used in municipal language that you "shall have regard to" something. I'm certainly willing to defer the question to legal counsel to see if there's a legal entity to that question.
Mr Simons: Mr Christopherson, when we were discussing this with the city, the city actually put this forward as a request, that we include this. The official plan of the city of Toronto will apply to the area where the corporation will be carrying out its objects, so that doesn't change; it's always going to apply. There's nothing in this bill that would change that. So the city just wanted some recognition of the plan, and that's what this provision provides.
Mr Christopherson: Fair enough. But when you do official plans and secondary plans and central-area plans, the whole point is to bring everybody together so that all decisions are ultimately feeding into the shared goal, the shared vision. I hear what my friend is saying about this being referred to, but there's also language everywhere throughout the municipal world that says "be consistent with," and there's good reason for that.
I'm still not hearing why it wouldn't say "be consistent with." When are there times when we would see the new corporation be out of sync with the official plan of the city of Toronto and that being OK?
Mr Beaubien: Last week when Mr Lastman was here, I asked a question with regard to the proposed development on the waterfront, whether it would be compatible with their official plan. I was told that, yes, everything they would do would be according to the official plan for the city of Toronto.
I've seen it on many occasions when they referred to something in the Municipal Act stating that you shall "have regard to" something. I don't know what the concern is, but I would imagine that what was proposed -- will it be compatible with your official plan? They say yes, so whether this came about as a result of the question I posed, I don't know, but the city has mentioned or suggested that this should be an amendment, having "regard to the official plan of the city of Toronto." I don't think it was in the bill prior to that.
Mr Simons: I think they originally suggested "be guided by," but I'm not quite clear what that means in law, and I didn't want to create a whole new set of jurisprudence on what that might mean. "Have regard to" is clear; it's well used in legislation. In the absence of this provision, the corporation would still have to have regard to or would have to comply with the official plan of the city of Toronto.
Mr Phillips: The mayor was here last week and indicated that he felt most of his concerns had been addressed through amendments, except for public meetings and conflict of interest. Is this wording acceptable to the city of Toronto?
Mr Christopherson: The reason I raise this is that I've been around long enough to recall when the Planning Act received major changes, and throughout, language referencing official plans and other legislation and guidelines that supported the community was changed and watered down to say "have regard to." We don't need to get into a legal discussion, but if you get in front of a judge or an arbitrator and make the case that somebody hasn't met the test of "have regard to," it means they've had absolutely no recognition that it even exists. To meet that standard, all you have to do is say, "Yeah, it's here. We looked at it and, you know, we had regard to it," and move on and that's the last time you think about it. It really doesn't mean anything.
Having gone through some of these battles in my own community, I know that waterfront entities, even without the support of law, take on lives of their own, and there's nothing uglier than a council that's battling with either the harbour commissioners or the port authority or, in this case, a new corporation. To say that things are consistent and fine now is wonderful, but this thing is going to take on a life of its own; this corporation is going to become quite an entity.
I'm not going to make a major deal out of it, but it seems to me that if the city were looking for some kind of tie-in, what they would really want is something that's clear that the ultimate planning authority is the official plan of the city, and if anybody wants to do anything different from that, they've either got to get an exception or there's got to be an amendment to that official plan. When I see "have regard to," I know what's going on; this is just a nice little piece of something you can point to and say, "See, we care about the official plan," but there's no teeth; there's nothing behind it. Let's be clear: this does, effectively, nothing.
"(1.2) The corporation shall not conduct itself so as to create, or to purport to create, an agency relationship with Her Majesty in right of Canada, Her Majesty in right of Ontario or the city of Toronto."
Mr Simons: I think you have to go back to what the definition of "federal government" is. When we change the definition of "federal government," this motion and the next two motions are consequential amendments.
"(5) A meeting or part of a meeting may be closed to the public if the subject matter being considered is a matter in respect of which a municipal council may hold a closed meeting under subsection 239(2) or (6) of the Municipal Act, 2001."
Mr Phillips: This is the second major concern of the city of Toronto, and that is that the meetings of this corporation be open to the public, and I share their concerns. I think Toronto city council unanimously passed this motion, and I notice that the NDP have a similar motion following this.
The future of Toronto will be heavily influenced by a successful waterfront revitalization. I'm fully supportive of that, and I'm anxious to do whatever we can, on behalf of our party, to make that happen. But I know from a lot of my own experience that if the public feels their business is being done behind closed doors, that there are things going on that should be public but aren't public, then we are just encouraging problems for the waterfront revitalization.
I know it's often cozy to do business behind closed doors -- it's a lot faster and less messy -- but in the long run, I think it will be the thing that runs the risk of unravelling the success of this. Mr Kwinter last week pointed out that during his term on the harbourfront commission, which has many of the same functions as this board, all their meetings were open to the public. Clearly, when you're dealing with personnel matters or matters where individuals could benefit financially, you do need to move to in camera.
Once again, to help Mr O'Toole along, I said to legislative counsel, "The city of Toronto is proposing that we use the same rules for public meetings that they do," and rather than reinvent the rules, I simply said, "We'll have the corporation adopt the same rules that are done for municipalities." The purpose of this is to open the meetings up to the public. I think that if we don't do this, in about a year this board is going to have some significant challenges.
Mr Sampson: I'm going to ask a question, perhaps to the legal counsel, about the amendment that's before us, about the one that will likely follow, if I can ask the indulgence of the committee, and about number 13, which I assume is the government's other version along the same theme. Taking a look at those three versions, perhaps we can have some discussion and some comment from counsel on whether one is different from the other; then also, under the Municipal Act, 2001, some understanding from counsel on what the requirements are or aren't for public meetings, and whether -- I understand Gerry is not trying to reinvent the wheel here -- that means there would be more public meetings, or would the government amendment include meetings that were over and above what the Municipal Act would ask for?
Mr Simons: In the Liberal motion, it basically requires all meetings of the board to be open to the public, except where one of the subject matters is enumerated under section 239(2) or (6) of the Municipal Act.
Mr Sampson: These are board members. So you can have a planning meeting that, under Mr Phillips's amendment, would still be in camera because it's not a board meeting. It could be a meeting of a subcommittee of the board, which I understand is not a definition of a board meeting. So there could be a planning subcommittee of the board deciding what to do with the generation plant that, even under Mr Phillips' amendment, would not be required to be open to the public. Is that correct?
Mr Sampson: The subcommittee of the board is actually not constituted as a board, so I think there's an argument that subcommittees of the board are not board meetings. I think for anyone, corporately, to argue otherwise would be making some big mistakes because subcommittees of boards do not bind the board; they just provide advice to the board. If I can lead you a little bit further --
Mr Sampson: -- what we're trying to do is get public meetings of some content around development, which is probably, with all due respect to the board, not likely at the board meetings, but more likely at planning meetings of subcommittees of boards, and planning meetings and development meetings of the corporations themselves, neither of which are covered by the NDP or Liberal amendment.
Mr Simons: Coming forward, Mr Sampson, when we get to section 8, there is a government motion that requires the corporation in its business plan to provide for holding public meetings and that will be part of the plan the three governments will have to deal with.
Mr Sampson: Right, and I suppose when we get there I will argue that that probably encompasses more of the meat-and-potato meetings that the members opposite would like to have exposed to the public than a final rubber-stamp board meeting, which is exactly what these two have targeted.
Mr Christopherson: It's interesting: the government argues that the leading thought is that they want public meetings; the legislation they're going to propose in amendment 13 is going to be "including holding public meetings," almost as an afterthought.
The argument made by Mr Sampson about subcommittees: he probably makes some good points. I would acknowledge that. I think these amendments would be even better if they did include any committees or subcommittees. But, having said that, the fact of the matter is that unless the board is prepared to delegate crucial decisions to subcommittees, which in and of itself would have to be public under this legislation but not yours -- that would tell the tale in terms of how serious people are about having input. If the board is going to delegate that kind of authority, then you've got a whole different kind of animal. So I'm assuming that at the end of the day all decisions have to come back to the board. Mr Sampson can say that that's rubber-stamping, but you can make the same argument about the Legislative Assembly after a cabinet meeting. Many of us would argue that that's exactly what happens. But the fact of the matter is that it is the Legislative Assembly that is ultimately supreme and it is in the public arena. This --
Nothing gets the public riled more than being barred from a meeting -- nothing. Those of us who have served on city councils or school boards, and there are a number of us around this table, know that. This is meant to head that off. One of the things, it seems to me, again based on my own experience, that we should be looking at when we pass this legislation is trying preventive medicine, trying to prevent conflicts between the waterfront corporation and city council. I assure you that down the road those conflicts are going to be there, and the more we think ahead and try to anticipate those problems and offer up what we think are the appropriate means for dealing with those frictions, the better all this is going to work.
Being very clear that no kind of secret meeting where final decisions are going to be made will be allowed should be the priority rather than just an afterthought of, "Oh yeah, they've got an obligation to set up a planning committee. And oh, by the way, make sure you cover off the whole issue of public input and public meetings, because you know how `they' are" -- two different worlds entirely. If the government is truly serious about making sure that this corporation is as transparent in its business decision-making as the public demands, then they've got to strengthen up what they're offering. Whether that's the Liberal amendment or the NDP amendment, they're virtually the same. They approach it somewhat differently but end up at the same place, and that is, what's good for the goose is good for the gander.
So if this is good for city council and the way they have to operate in making their kinds of decisions, then this waterfront corporation, which a lot of people believe is going to have a lot to do with the ultimate success or failure of this city as people envision the ultimate product of the city of Toronto -- so this is huge, and if we don't solve it right now, there are going to be battles down the road that don't have to happen. We can avoid them by providing the leadership and insight that these kinds of amendments, coming from the Liberals and the NDP, offer. To do anything less is to pay lip service to public hearings and to plant the seeds of discontent down the road. We can avoid all that by doing the right thing and the appropriate thing here this morning.
Mr Beaubien: I think everybody is trying to do the right thing, and to say that this is an afterthought -- in Bill 151 there is really nothing that bars anybody from attending any public meetings. Meetings are open to the public. It's fine to say this, but I think you need public input. This is going to be a public development. To assume that the public would be shut out of the process -- I just don't get it.
Furthermore, the Liberal motion says: "All meetings of the board shall be open to the public except as provided...." That's fine but, as Mr Sampson pointed out, what about sub-committee meetings? What about other meetings that may be occurring? It doesn't say anything about this. All you are mentioning is board meetings. The bill as it stands right now covers everything. It doesn't preclude anybody from attending any of the meetings -- just for clarification.
Mr Phillips: The fact of the matter is that the board, and Mr Fung indicated it, plans to do their business in private. Their board meetings will be in private. I will just say to us that we're sowing the seeds of big problems for this corporation.
I know that Mr Fung and the board think it's kind of messy to have their meetings in public, that it's going to cause them problems because the public will be there and maybe not liking some of the things they're doing. I was on a school board, you were in a council and others have been on councils, and I know from first-hand experience that if you do the public's business behind closed doors, you're asking for problems. I was as careful as I could possibly be to make sure that as soon as any discussions started taking place behind closed doors that should have been public, we moved into public, otherwise the public doesn't understand how you reached your decisions.
The fact of the matter is that the legislation does not require the board meetings to be in public, and Mr Fung has said they'll be in private. As for sub-committees and whatnot, every decision the board makes has to be made by the whole board, according to legislation. I'm saying that a meeting where any decision is made has to be in public.
The government amendments -- all I say is, listen, the board must hold some public meetings. That's just window dressing, frankly. That's like the public won't be allowed in when the decisions are being made, but they'll be allowed to know after the facts and plans or before the fact to have some discussion. I think if we want the public to buy into the waterfront -- in the final analysis, if this is going to work, they're going to have to. If they're not allowed step by step to be brought along, I will virtually guarantee that at some stage in the future, 12 months, 18 months from now, this board will end up being bogged down because the public support will not be there. It is true. This is the public's business. This isn't our business. I see no justification why it shouldn't be done in public, with the exception of the two major things that are excluded.
Mr O'Toole: I personally want to put on the record that I don't have a problem. I believe that the board meetings generally should be held in public, where the information is brought from committees which may appropriately be in camera, whether it's property matters etc. I'm not having tremendous difficulty with this, but I think we need to make sure we have clarity between the two amendments, the Liberal amendment and the NDP amendment. If I could ask legal counsel to give us a clear interpretation of those two provisions, of providing some context for public meetings, and would there be any implied requirement by the board to hold public meetings the way the current thing is billed as well as our own motion 13?
Ms Laura Hopkins: There is a difference between the Liberal motion and the NDP motion. The difference is a technical difference. The NDP motion would incorporate a rule from the new Municipal Act that isn't part of the Liberal motion. The rule that the NDP motion would incorporate deals with whether or not votes are held in public or in private -- sorry, my mistake: it deals with the notice the public gets before a meeting goes private.
Under the NDP motion, the board of directors would be required to state by resolution the fact that their meeting will be closed or part of the meeting will be closed, and also to state the general nature of the matter they're going to consider during the portion of the meeting that's closed. This is omitted from the Liberal motion.
Mr O'Toole: I'm just putting on the record that it is important for the city of Toronto and in fact for all Ontario to get this thing right, and if there's a perception that the denial of public right to know is something -- I certainly support the public position. I don't know if other members here have a question on that line, but where does our motion stand? That was the final part of it, the one in 13, dealing with subsection 8(2), which says, "A description of the corporation's plans" --
Mr O'Toole: Yes, but with your indulgence, Chair, it does say "encourage public input into the development of the designated waterfront area, including holding public meetings." It's not perhaps broad enough, I don't know. Do you understand how it talks on the same issue of public meetings?
Mr Simons: Mr O'Toole, when we get to section 8, this is a component of the business plan -- this is what we're requiring the corporation to come forward with every year -- one of which is a plan for holding public meetings.
Mr Christopherson: I'm going to do something that I don't do very often or lightly. I'm going to take some folks from the other side of the House at their word and see how things play out. That's all I have to say for now. I put that nicely.
The Chair: That's on the record. Would anyone from the government side have any comments? We'll deal with the Liberal motion then. Unfortunately, Mr Phillips has not returned, but we shall call the question. All in favour of the Liberal motion? All opposed? Defeated.
Mr Beaubien: As we discussed previously, I think everybody wants to do the right thing. On this side of the House, we believe in transparency. We want public meetings. We all make sure that people participate in the process. I'm going to speak in favour of the NDP motion because, under public meeting, where they say "(4) Section 239," it's even more stringent than what the Liberal motion suggested. I think it provides transparency. It provides accountability. It is public dollars that we're dealing with. I would also like to put on the record that we do consult, we do listen and you have an input. You can take credit for having an amendment in this bill that I personally can support. Again, we want to make sure that people are very comfortable with the transparency and the accountability issue.
"(1) The board of directors shall follow such directions concerning the management and supervision of the affairs of the corporation as may be set out in a written agreement of Her Majesty in right of Canada, Her Majesty in right of Ontario and the city of Toronto."
"2. A description of the corporation's plans for the next five years to enhance the economic, social and cultural value of the land in the designated waterfront area. The plans must include details about the current and forecast levels of activity in the area, the infrastructure that may be needed, the plans to divide and develop the land, the projects that the board considers to be priorities for the corporation and the timetable for implementing these projects.
"3. An estimate of the long-term development costs of achieving these objectives and a description of the business strategies and funding options available to the corporation for the following five years.
Mr Sampson: We changed the definition of "land" and turned it into "area" on the assumption that it included water. I'm just worried that we're using the word "land" here, and I'm wondering whether one could imply that, because the definition will change about area now, that it excludes the water. I hate to be a technician here, and I'm not one, but is that a problem?
Mr Sampson: All throughout there, you talk about the value of the "land" in the designated waterfront area, which now includes land and water, and then development of the land. I mean, "land" is used throughout that amendment in a number of sections. Is it a problem now? Are people going to interpret that we didn't mean water, now that we have an area definition that includes water, or am I just stretching, trying to be a lawyer when I shouldn't be?
Ms Hopkins: Thank you, Chair, I'd love to answer that. From a technical drafting point of view I appreciate the technical feedback, and if I'd caught it I would have made the change that you've suggested. The objects of the corporation refer to "land" rather than "area" and it refers to land in the designated waterfront area. Under the Interpretation Act, statutes are given a large and liberal interpretation in order to achieve their objectives.
Mr O'Toole: I think the point in the definition section is what Mr Sampson is referring to. We have clarified the distinction there. Wouldn't that, in any interpretation of the subsequent sections, make reference to the definition section? You know, we've changed "designated waterfront" to "area" there, so that's the definition section, and so any time, wouldn't it take precedence in the interpretation?
"(3) The board of directors shall give a copy of each business plan to the federal government, the provincial government and the clerk of the city of Toronto; the copy given to the Clerk is to be addressed to the mayor and members of the council."
"(1) The corporation shall maintain financial records for the corporation and its subsidiaries and shall establish financial, management and information systems that will enable the corporation to prepare financial statements in accordance with generally accepted accounting principles."
"(1) The corporation shall give an annual report on its affairs to the federal government, the provincial government and the clerk of the city of Toronto within 90 days after the end of each fiscal year; the report given to the clerk is to be addressed to the mayor and members of the council."
"13(1) The Lieutenant Governor in Council may by order require the board of directors to wind up the affairs of the corporation on or after the 20th anniversary of the date on which section 2 comes into force.
"(3) If no order is made under subsection (1), the Lieutenant Governor in Council shall by order require the board of directors to wind up the affairs of the corporation promptly after the 25th anniversary of the date on which section 2 comes into force.
"(4) The board of directors shall prepare a proposed plan for winding up the corporation and transferring its assets and liabilities and shall give the proposed plan to the federal government, the provincial government and city council.
"(6) Upon the approval of the proposed plan by the federal government, the provincial government and city council, the board of directors shall wind up the affairs of the corporation and transfer its assets and liabilities in accordance with the plan."
"(3) The board shall give the report to the federal government, the provincial government and the clerk of the city of Toronto; the report given to the clerk is to be addressed to the mayor and members of the council."