Significant social media outreach can be the basis for procedural fairness in municipal decision-making

This post is in: November 29, 2018

Use of technology to seek public input replaces multiple public meetings

In West Nipissing Police Services Board v. Municipality of West Nipissing, the Police Services Board of West Nipissing brought a judicial review application before a three judge panel of the Ontario Divisional Court, seeking to overturn a decision made by the Municipality to enter into an arrangement with the Ontario Provincial Police to take over municipal policing services. In large measure, the Board’s application was based on an alleged failure to live up to its requirements for public consultations leading up to the decision.

The Municipality had been formed by an amalgamation of a number of areas, including Sturgeon Falls, in 1999. Prior to then, Sturgeon Falls had its own police force and the outlying areas were served by the OPP. Around amalgamation, a process was begun to consider the feasibility of having the OPP take over but it was deferred so that the newly-formed Municipality could make that decision later. At the time, a number of public meetings were held discussing amalgamation generally and policing could have been among the topics discussed.

In 2012/2013, a process was developed and followed in anticipation of a decision on policing for the Municipality. The Court describes it:

[9] During the 2012/2013 OPP costing process, a steering committee was struck, comprised of the local Chief of Police, a Board services member, a municipal councillor, municipal staff, a representative of the local police association and a police services advisor. The steering committee met on two or three occasions and provided input to the OPP to assist it in its costing proposal.

[10] In the 2012/2013 process, public meetings were held in three communities within the Municipality, with a total of 278 people attending the meetings. These public meetings were not televised, nor was the Internet or social media used in either the 1998/1999 or 2012/2013 consultation process.

At that time, no decision was made and the municipal police force carried on. In 2016, a new process was begun, led by the municipal council, which was markedly different from the 2012/2013 effort. Instead of a steering committee with multiple public meetings, only one meeting was held but there was significant social media outreach and input was sought through those channels.

[15] A public meeting regarding the OPP proposal was held in Sturgeon Falls on November 22, 2017. The public meeting was promoted throughout the Municipality on posters in municipal offices, libraries and other public locations, as well as ads on the local radio stations. It was also promoted on the Municipality’s website, Facebook page and Twitter feed.

[16] Approximately 90 members of the community attended the public meeting. In addition, the public meeting was broadcast live on the local cable TV, was live streamed online, and was filmed and made available on YouTube.

[17] The OPP costing proposal was presented at the public meeting, as was the financial analysis by the Treasurer that was given to the Municipality. Two hours were set aside for questions from the public, which the OPP and staff answered. Council members were present for this meeting to observe and gain input.

[18] Representatives of the OPP were present at the public meeting along with municipal staff, the Chief of Police, and the Chair of the Police Services Board, as well as the Mayor and members of Council. The role of the Chair of the Board and the Chief of Police was limited to answering questions.

[19] Following the public meeting, the OPP proposal and the Municipality’s financial analysis were posted to the Municipality’s website for the public to review. As well, paper copies of the OPP costing proposal and the Municipality’s financial analysis were distributed to all municipal facilities and libraries for the public’s access.

[20] The Municipality established a dedicated email address, which was posted on the Municipality’s website, to allow further questions to be asked by members of the public. Answers to those questions, from the Municipality staff, were posted online as well. Council was provided with the information regarding the questions asked, along with the answers posted to the website, prior to its consideration of the By-law on December 5, 2017. The record before us indicates that the vast majority of the questions were answered by staff online before that meeting.

The Board argued, in its judicial review application, that they had a legitimate expectation that the previous process would be repeated and that the Municipality had failed in its obligations of procedural fairness. The Court dismissed these arguments and highlighted the technology-enabled means by which individual residents of the Municipality could participate in the new process:

[55] The Board further relies on the fact that in the prior two consultations there were multiple public meetings in different locations. The 1999 process was very different in that it took place in the course of a significant process of consolidating a group of municipalities into one, and it is therefore not really comparable. In 2012/2013 there were three public meetings in different locations rather than one, however this is also a single prior instance rather than a clear, unambiguous and unqualified past practice.

[56] Moreover, the reach of the public consultation cannot be measured solely on the basis of the number of or location of meetings. In the 2016/2017 process, the in-person meeting was supplemented by the use of cable TV and YouTube, making it possible for a wider audience to effectively attend the meeting without needing to attend in person. There was also a significant use of the Internet and social media to make information available and provide a forum for questions and answers from members of the public.

In its conclusions with respect to procedural fairness, the Court again highlighted the use of the internet in providing procedural fairness:

[60] We conclude that the process followed in 2016/2017 was sufficient for this legislative decision. The Municipality made available information about the proposal to the public, both in print and online, gave notice of the public meeting, which was widely advertised including online, held a public meeting at which questions could be asked and answered, broadcast that meeting broadly using cable TV, live streaming and the Internet, had an ongoing online means to ask questions and obtain answers and provided an opportunity for deputations, including from the Board. The Council received the Board’s view from that presentation along with a survey that the police service had commissioned. Bearing in mind all relevant factors, we conclude that there was no breach of procedural fairness in the consultation process.

Interestingly, there was no discussion of whether this outreach would exclude members of the affected population who did not have access to the internet.