On 01 May 2020, the Minister of Public Safety and Solicitor General made the Local Government Meetings and Bylaw Process (COVID-19) Order No. 2 (the “Order”). The Order enlarges powers of municipal governments and affects the public’s rights to participate in local government.

Local governments make critical decisions that affect the day-to-day lives of residents. Land use decisions—what people can and cannot do on their property—are some of the most significant and are set out in the zoning bylaws adopted by a local government.

Such bylaws are distinct from other bylaws in that they require public hearings before council makes its decision. At a public hearing, anyone whose interests are affected by the proposed zoning bylaw must be afforded a reasonable opportunity to be heard. The stakes for residents are high, and so is the level of transparency and fairness required of council.

As explained by our Court of Appeal, the purpose of public hearings isn’t just to allow people to make their views known and give them an opportunity to vent, they help Council make more considered decisions that reflect the public interest.

Now, under the Order, local governments are allowed to hold public hearings electronically. How municipal governments will balance the exercise of such enlarged powers with the public’s general right to be heard remains to be seen.

These unprecedented times have seen the explosion in popularity and accessibility of online meetings in many sectors, to facilitate business as usual where possible. Electronic facilities will be no less valuable to councils needing to continue regular operations. But what are the broader, long-lasting implications for public participatory rights if these temporary measures make council’s work a little too convenient and are made available to councils even after the state of emergency is behind us? Electronic public hearings may be more efficient but how can the public be confident that their concerns are receiving council’s full attention and that council is actually listening?

The importance of public participation in municipal government, in the adoption of bylaws in particular – zoning or otherwise – has long been emphasized in the courts. The Supreme Court of Canada has described the requirement that council meetings be open to the public as an effort to imbue municipal governments with a “robust democratic legitimacy.” The order qualifies public rights to achieve efficiencies for municipal operations during the pandemic but may undermine the democratic legitimacy of the decisions made using these new powers.

If you have questions or concerns about how the Order may affect you, please contact the authors.

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