The Supreme Court of Canada recently held that what happens at in camera meetings may not stay at in camera meetings.
Boards of directors may meet in camera (meaning “in chambers”, or privately) in order to discuss particularly sensitive issues, such as legal, personnel, real property, management performance, or labour relations matters, or where personal information about a volunteer, staff member or donor will be disclosed.
Attendance at an in camera meeting may be limited to the board of directors, directors and the CEO, or may include additional staff, the auditor, or others at the invitation of the board. Attendees at such meetings have a duty to keep all discussions and documentation confidential. This duty is usually reinforced by the formality of calling an in camera meeting or resolving to adjourn the public portion of a meeting and reconvene in camera.
Directors often rely on the “closed door” nature of such meetings to engage in deliberations in an open and forthright manner. Typically only the outcome of such meetings, in the form of any resolutions approved by the Board, are made public.
However, with a recent decision of the Supreme Court of Canada, it may no longer be assumed that in camera discussions will always remain private. In Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8 (CanLII), the Supreme Court upheld an arbitrator’s decision that members of the executive committee of a school board could be compelled to testify regarding their in camera deliberations which led to the dismissal of a teacher. The Court found a board acting in its capacity as an employer was not protected by the principle of “deliberative secrecy” which has historically shielded judges and quasi-judicial bodies from being ordered to testify as to how they arrived at a decision.
Boards may, therefore, anticipate that in camera meeting agendas, minutes, supporting documentation and director’s notes could become part of the disclosure process if related to the subject matter of litigation.
The Supreme Court’s decision should prompt boards to revisit their by-laws, policies and procedures relating to in camera meetings, with a view to providing directors, officers and staff with clear direction regarding expectations and protocol, on items such as:
- Are board meetings public or private;
- If public, under what circumstances may the board meet in camera;
- Can some or all board committees meet in camera;
- Who may attend an in camera meeting;
- Who will take minutes, and what should minutes include;
- How will decisions taken in camera be publicly communicated; and
- How will agendas, supporting documentation and minutes be circulated and stored.
We would be happy to assist in a policy review or in the development of a by-law to address these items.