1 Review of Existing Fleet and Garage Operations - Consulting Engagement

2 Community Centres and Arenas - 1998 Financial Statements

3 1998 Arena Deficits

4 Toronto Atmospheric Fund

5 Other Items Considered by the Committee

(City Council on October 26 and 27, 1999, adopted this Clause, without amendment.)

The Audit Committee recommends the adoption of the confidential report (September 23, 1999) from the City Auditor, which has been forwarded to Members of Council under separate cover.

(City Council on October 26 and 27, 1999, considered the aforementioned confidential report dated September 23, 1999, from the City Auditor, such report to remain confidential in accordance with the provisions of the Municipal Act.)

(City Council on October 26 and 27, 1999, adopted this Clause, without amendment.)

The Audit Committee recommends the adoption of the following report (September 17, 1999) from the City Auditor:

Purpose:

To present the 1998 Financial Statements and Auditor's Report for the following community centres and arenas:

Applegrove Community Complex Forest Hill Arena

Community Centre 55 George Bell Arena

519 Church Street Community Centre Ted Reeve Arena

Harbourfront Community Centre

Ralph Thornton Community Centre

Scadding Court Community Centre

Swansea Town Hall

Recommendation:

It is recommended that the above financial statements be received for information and forwarded to Council.

Comments:

The audit of the financial audits of community centres and arenas are the responsibility of the City Auditor. The audits of the above community centres and arenas have been completed and have been approved by the respective Boards.

The financial statements of the remaining community centres and arenas have been completed and will be forwarded to the Audit Committee upon receipt of the signed balance sheets indicating the approval of the respective Boards and Committees of Management. These include the following:

Cecil Street Community Centre Moss Park Arena

Central Eglinton Community Centre North Toronto Arena

Eastview Neighbourhood Community Centre William H. Bolten Arena

In addition, McCormick Arena has not yet been completed due to the fact that certain accounting information required from management is still outstanding.

Contact Name and Telephone Number:

Steve Harris, Senior Audit Manager, 392-8460

The Audit Committee reports, for the information of Council having also had before it during consideration of the foregoing matter, the Auditor's Report and Financial Statements for the following community centres and arenas, and a copy thereof has been submitted to Council under separate cover:

Applegrove Community Complex;

Community Centre 55;

519 Church Street Community Centre;

Forest Hill Arena;

George Bell Arena;

Harbourfront Community Centre;

Ralph Thornton Community Centre;

Scadding Court Community Centre;

Swansea Town Hall; and

Ted Reeve Arena.

(City Council on October 26 and 27, 1999, had before it, during consideration of the foregoing Clause, a communication (October 18, 1999) from the City Clerk, forwarding the Auditor's Report and Financial Statements for the following community centres and arenas:

- Applegrove Community Complex;

- Community Centre 55;

- 519 Church Street Community Centre;

- Forest Hill Arena;

- George Bell Arena;

- Harbourfront Community Centre;

- Ralph Thornton Community Centre;

- Scadding Court Community Centre;

- Swansea Town Hall; and

- Ted Reeve Arena.)

(City Council on October 26 and 27, 1999, amended this Clause by striking out and referring Recommendation No. (2) of the Audit Committee to the City Auditor for consultation with the arenas and report thereon to the Audit Committee, viz.:

"(2) the issue of arena operating budgets be forwarded to the Chief Administrative Officer for consideration as part of his report on Agencies, Boards and Commissions, in terms of eliminating duplication, reducing deficits and increasing revenue.")

The Audit Committee recommends that:

(1) the following report (September 17, 1999) from the City Auditor be adopted; and

(2) the issue of arena operating budgets be forwarded to the Chief Administrative Officer for consideration as part of his report on Agencies, Boards and Commissions, in terms of eliminating duplication, reducing deficits and increasing revenue.

The Audit Committee submits the following report (September 17, 1999) from the City Auditor:

Purpose:

To respond to the request of the Budget Committee in regards to the operating deficits of certain City operated arenas.

Recommendations:

It is recommended that:

(1) no further action be taken with respect to the operations of the George Bell Arena and the Ted Reeve Arena as it has been determined that the 1998 operating deficits are attributable to one time unusual events;

(2) the present practice relating to the preparation of non-audited financial statements of the Leaside Memorial Gardens Arena be discontinued and the City Auditor be required to conduct an audit of the accounts of the Leaside Memorial Gardens Arena for all future fiscal periods;

(3) the City Auditor report to the next Audit Committee on the operations of the McCormick Arena upon completion of the 1998 audit; and

(4) this report be forwarded to the Budget Committee for their information.

Background:

During 1999 budget deliberations, the City Auditor was requested to review revenues and expenditures of those arenas with large deficits and report back to the Budget Committee with recommendations on how those deficits may be reduced.

The City Auditor has completed the audit of six of the eight arenas which operate as Boards or Committees of Management.

The operating results for the year ended December 31, 1998 are as follows:

(Deficit) Surplus

1998 1997

George Bell Arena ($ 14,299) $10,491 Ted Reeve Arena ($ 30,056) ($13,229)

Forest Hill Arena $ 80,040 $91,888

Moss Park Arena $ 23,635 $12,582

North Toronto Arena $ 16,612 $17,145 William H. Bolton Arena $ 11,756 $13,436

McCormick Arena Not available ( $97,254)

Leaside Memorial Community Gardens ($251,455) ( $259,419)

The City Auditor has not been able to access the records of the McCormick Arena due to computer hardware problems experienced by the arena which have impacted their financial system and delayed their completion of the 1998 records for audit purposes. It is anticipated that these problems will be resolved shortly thus enabling the City Auditor to complete the 1998 audit.

The Leaside Memorial Community Gardens is a local board which was operated by the former Borough of East York. Historically, these financial statements were not audited by the external auditors of the Borough of East York. Rather, the financial statements were the subject of a limited accounting review by an independent firm of Chartered Accountants. This practice continued for the year ended December 31, 1998. Consequently, audited statements for the Leaside Memorial Community Gardens have not been prepared.

Comments:

Specific comments on these arenas with deficits are as follows:

George Bell Arena Deficit of $14,299

The 1998 deficit is attributed entirely to an unbudgeted expenditure of $34,479 related to past service pension costs as a result of the enrollment of arena employees in the OMERS pension plan. The Committee of Management approved this plan and, in consultation with City Budget staff, the funding was to be applied from the arena's $69,500 accumulated surplus from prior years which had not been remitted to the City as required. Although a local board is permitted to join OMERS under the Municipal Act, it is not permitted to incur expenditures not previously approved by Council. Excluding this unusual expenditure, the arena would have generated a surplus of approximately $20,180. The additional ongoing expenditure attributed to the OMERS plan is approximately $2,000 above previous expenditures made for employee personal RRSP contributions. This will become an approved budgeted expenditure and the arena should continue to generate an annual operating surplus.

Ted Reeve Arena Deficit of $30,056

The deficit of the arena is attributable to circumstances which appear to be isolated to the 1998 fiscal period and should not present a recurring problem. The former arena Manager retired during 1998 and by arrangement with the Committee remained on staff after the hiring of the new Manager for a seven month period from February to August 1998. While this overlapping period facilitated the transition of the new Manager, it resulted in increased salary and wages by some $26,000. While the Committee of Management approved this overlapping expense, the additional amount was not submitted with the 1998 budget estimates and was never approved by Council.

Revenue from ice rentals was above budget by $4,000, however, snack bar operations were almost $12,000 below budget due to a major renovation to the snack bar which was not anticipated in the budget. Other revenues offset this reduction and overall revenues from operations are only $2,500 below budget.

The major renovation to dressing rooms and snack bar operations was funded through private donations, a City contribution and approximately $12,000 from arena operations. Favourable variances in other expenditure areas offset all but $2,000 of these additional renovation costs. This combined with the $2,500 reduction in revenues from budget and the $26,000 negative variance from overlapping salary and wages accounts for the 1998 deficit of $30,056. Providing there are no additional disruptions to service as a result of 1999 renovations, the arena should be capable of generating a surplus from existing operations.

Leaside Memorial Community Gardens Deficit of $251,455

The Leaside Memorial Community Gardens is an arena that was created under the former East York Council. Unlike the operations of the other arenas, the facility consists of the arena, a banquet hall and a twenty-five metre indoor swimming pool in an adjacent building. All revenue from this pool accrues to the Parks and Recreation Division, however, all expenditures related to the pool are recorded in the records of the Leaside Memorial Community Gardens. In addition, management of the arena is responsible for the administration of its own major capital expenditure program including the related debenture funding and costs. Consequently, the financial statements of the operation of this particular arena include debt service on capital debentures and expenses related to the pool.

A reasonable comparison to any other single pad arena can only be made by excluding the pool operation and the debenture interest. The remaining operations which include the ice rental, the snack bar, the vending and auditorium rental are comparable to that of other arenas. Combining the results from these remaining areas reveals that the operation has an annual deficit for 1998 of $59,032. Revenues from ice rental at $306,000 appear to be comparable to similar size operations such as the George Bell Arena at $317,000 and the Ted Reeve Arena at $269,000. However, it is not possible to provide additional comment on other aspects of staffing and expenditure levels which may have contributed to the deficit position of the arena without conducting a more detailed audit of the operation. It is suggested that this audit be conducted by the City Auditor for future fiscal periods.

Conclusion:

There are opportunities for cost savings in all arenas, particularly in the administrative areas. This particular issue has been addressed in our report dated August 30, 1999, to the Audit Committee entitled, 1998 Management Letter Summary - Community Centres and Arenas.

The review of the 1998 deficit positions of both the George Bell Arena and the Ted Reeve Arena indicates that the losses are a result of one time unusual events which should not impair either operations ability to generate surplus positions in 1999 and future years.

A further report will be prepared and forwarded to the Audit Committee on any deficit position relating to McCormick Arena on the completion of the 1998 audit. An audit on the Leaside Memorial Community Gardens has not be conducted for a number of years. A further report will be submitted to the Audit Committee on the completion of the audit of the Leaside Memorial Community Gardens.

Contact Name and Telephone Number:

Steve Harris, Senior Audit Manager, 392-8460

(City Council on October 26 and 27, 1999, amended this Clause by adding thereto the following:

"It is further recommended that the joint report dated October 25, 1999, from the City Solicitor and the Chief Financial Officer and Treasurer, be referred to the Policy and Finance Committee, and the lawyer for the Toronto Atmospheric Fund and Councillors Rob Davis and Jack Layton be advised when this matter is to be considered by the Committee.")

The Audit Committee recommends the adoption of the following joint report (September 17, 1999) from the City Auditor and City Solicitor.

The Audit Committee reports, for the information of Council, having requested the City Solicitor and the Chief Financial Officer and Treasurer to report further to Council on Recommendation No.(6) contained in the joint report (September 17, 1999) from the City Auditor and the City Solicitor, including any legislative amendments necessary to enact the TAF proposal respecting investment of funds.

The Audit Committee submits the following joint report (September 17, 1999) from the City Auditor and City Solicitor:

Recommendations:

It is recommended that:

(1) as part of the City's 2000 operating budget process, the Toronto Atmospheric Fund Board clarify the role and responsibilities of other City departments and programs involved in improving air quality, relative to the mandate and objectives of TAF, and include in the report the funds expended annually by these program areas on air quality improvement and awareness;

(2) in view of the significant funds spent by the Fund to date, the Toronto Atmospheric Fund Board submit a status report to City Council by November 30, 1999, outlining the benefits and returns received to date, as well as the progress towards achieving the goal of reducing greenhouse gas emissions by 20 percent by 2005;

(3) the Toronto Atmospheric Fund establish appropriate performance indicators against which the activities and performance of the Fund can be measured, both annually and in the longer term;

(4) the Toronto Atmospheric Fund's annual operating budget, as approved by its Board of Directors, be submitted to City Council for review and approval;

(5) the Toronto Atmospheric Fund Board include in its annual financial statements provided to the City or in a separate report to Council, a summary of the grants and loans approved in the year, as well as a listing of consulting expenditures incurred;

(6) the Toronto Atmospheric Fund Board obtain City Council approval for any proposed changes to the investment of TAF funds as well as for any requests to amend the Trustee Act in this regard;

(7) the Toronto Atmospheric Fund submit to City Council for approval, any loans, guarantees or security on loans, or lines of credit in excess of $500,000, following a review by City Finance;

(8) the procurement of consulting and other goods and services by the Toronto Atmospheric Fund be conducted through the Purchasing and Materials Management Division of City Finance, and in accordance with the City's purchasing policies;

(9) expenditures incurred by the Toronto Atmospheric Fund be properly classified in its annual financial statements and segregated into grant and administrative expenses; and

(10) staff take the necessary action to implement the above recommendations, including the introduction of bills to Council.

Background:

At its meeting on June 9, 10, 11, 1999, City Council adopted Clause No. 3 of Report No. 4 of The Audit Committee which recommended that with respect to the Toronto Atmospheric Fund (TAF/the Fund), the City Auditor review and report thereon to the Audit Committee on the issuance of grants, consulting fees, legal costs and any other identified concerns, including whether TAF can be considered an agency, board or commission. The Audit Committee also recommended that the City Solicitor report to the Audit Committee on the legal status of the Toronto Atmospheric Fund and its relationship to the City, particularly with respect to the Fund's $24 million in assets and the City's obligations and abilities to make decisions respecting the fund.

Comments:

The Toronto Atmospheric Fund and the Toronto Atmospheric Fund Foundation (TAF Foundation/TAFF) are statutory corporations created by the Toronto Atmospheric Fund Act, 1992 (the TAF Act), at the request of the former City of Toronto. The Toronto Atmospheric Fund Foundation is a registered charity to which donations can be made.

The objectives of TAF are to assist the City and the community to reach their climate change goals and reduce carbon emissions by 20 percent of 1990 levels by 2005. TAF provides grants and financing to organizations that promote energy efficiency, renewable energy, sustainable transportation, improved urban planning and greening of the City. It is managed by a Board of Directors, appointed by Council, comprised of City councillors, staff and citizens.

Legal Status of Toronto Atmospheric Fund:

TAF is a statutory corporation created by the Province at the request of the former City of Toronto. Despite section 10 of the TAF Act (enacted in 1992) which states that TAF was deemed not to be a local board of the City, the Municipal Act, subsection 210.4(7), which was enacted in 1996, stipulates that the Minister of Municipal Affairs and Housing may make regulations providing that any body performing any public function is a local board. Subsection 2(c) of Ontario Regulation 214/96 provides that for the purposes of that Regulation, TAF and the TAF Foundation are local boards of the City. In addition to the financial controls set out below, the Regulation also allows a municipality to take powers from a local board so that those powers can be exercised by the municipality, in which case the municipality then stands in the place of the local board, with all the attendant liabilities and obligations with respect to those powers.

The City provided a grant of approximately $23 million to TAF in 1993, under subsection 9(1) of the TAF Act. The TAF operating budget is based on the investment income generated on the amount of the City grant, plus any surplus from the preceding year, under former City of Toronto Council imposed guidelines (Executive Committee Report No. 27, Clause 15, as amended and adopted December 18 and 19, 1995, as amended by Executive Committee Report No. 7, Clause 3, adopted February 3, 1997). Under subsection 6(1) of the TAF Act, the City holds TAF funds not immediately required for TAF's objects, and under subsection 6(3), the City Treasurer may invest those funds in securities authorized under the Trustee Act for trustees.

As such, TAF is different from other local boards which submit their estimates for both Council approval and funding. TAF currently submits its annual estimates for its own Board approval. If the recommendations contained in this report are adopted, these estimates would then also be subject to Council approval.

It appears that although the City's ability to require TAF to submit its budget for City approval was not intended by the financial reporting structure contained in the TAF Act, this requirement can now be imposed on TAF under the provisions of Municipal Act, section 210.4 and Ontario Regulation 214/96, passed under the authority of section 210.4.

In order to be able to draft a stand-alone by-law to implement the recommendations contained in this report, if approved by Council, the appropriate consultation will have to be undertaken with TAF staff and its outside counsel, to ensure that any TAF internal accounting measures or TAF by-laws which may conflict with the proposed course of action are considered and addressed in the by-law.

In the event that the City were to dissolve TAF, under subsection 12(3) of the TAF Act, the remaining TAF property, after all of its debts and liabilities are paid, would be distributed to the City.

Issuance of Grants:

The Toronto Atmospheric Fund makes grants and loans to applicants that meet various criteria and guidelines, and whose goals and objectives are consistent with those of TAF. In 1998, TAF issued grants totalling $596,745. The screening process for grants involves the review and consideration of applications by TAF staff and TAF's Grants and Loans Committee. Recommended applications are then forwarded to the TAF Board for final consideration and approval. Under the TAF Act, City Council approval of the grants and loans is not required unless the proposed grants and loans extend over the term of the current Council.

In its annual report, TAF includes a summary of the grants and loans approved in the fiscal year. However, this information is not included in TAF's financial statements which are forwarded to the City for information. In order to ensure Council is aware of TAF's activities in a given year, it would be appropriate for TAF to include, in its financial statements or in a separate report to Council, information with respect to grants and loans approved by the TAF Board.

Consulting Fees:

TAF staff indicate that consulting expenditures in 1998, which totalled $144,654, included some grants approved by the Board that are classified as consulting because they are implemented via contracts with the applicant, rather than through a straight grant. TAF uses contracts when it wishes to more directly manage an applicant's performance. Projects initiated by TAF to obtain a specific service or deliverable are appropriately categorized as consulting. However, any funds received by an organization on the basis of their application for support should be categorized as a grant, regardless of whether a contract is used to manage the applicant's performance.

The procurement of consulting services should be done through City Purchasing and in accordance with the City's purchasing policies. It would also be appropriate for TAF to provide City Council with a summary of consulting expenditures in its annual report and include the name of the individual or organization, service or deliverable provided and the amount of the contract.

Legal Costs:

TAF incurred $32,733 in legal costs in 1998. Outside legal counsel is contracted to provide legal advice relating to TAF's grants and loans as well as general legal advice required by TAF staff and Board in managing its operation. The increase in TAF's loan activity in the last few years has required additional legal services in order to ensure that necessary due diligence is exercised by TAF on its loan portfolio. In 1999, TAF has implemented a new policy which will require applicants for loans to pay associated legal costs in negotiating loan agreements. TAF staff indicate that as a result, TAF's legal costs are expected to decrease by up to 80 percent in 1999.

Relationship With Other City Programs or Departments:

Other program areas in the City such as the Healthy City Office, Environmental Services (Works Department) and Public Health are involved to some extent or have some interest in the City's air quality and greenhouse gas emissions. While the Works Department and Public Health have representation on the TAF board, it would be appropriate to clarify the role of these program areas relative to the mandate of TAF and to provide Council with information on the amount expended annually by these program areas on air quality and greenhouse gas initiatives. This will provide Council with a complete picture of air quality improvement activities in the City and the total annual cost thereof, and identify any duplication of activities among these program areas and TAF.

Annual Budget:

TAF is a separate legal entity with its own board, appointed by Council. City Council can at any time, by resolution, dissolve TAF. Therefore, while TAF is a separate entity, it is still very much accountable to the City. As such, it is appropriate that TAF's annual budget, including revenue, grants and operating expenditures be approved by the City. The budget submitted to the City should also include performance indicators and a report on how well TAF is meeting its goals.

Guarantee on Loans:

In addition to making grants, TAF lends money to organizations, which through their initiatives, will assist TAF in meeting its objectives. TAF also provides a line of credit to organizations, and guarantees and secures loans to assist organizations in obtaining financing for projects. Any default on the above noted transactions become expenditures of TAF and could compromise the $23 million endowment the City is required to maintain in TAF. City Council should therefore approve any loans, guarantees or security on loans or lines of credit greater than $500 thousand.

Status of Performance to Date:

From 1993 to 1998, TAF has made grants totalling over $3.5 million to various organizations. This is a significant investment on the part of the City. It would therefore be useful that TAF staff prepare a status report on the benefits and returns received to date as well as on the progress to date towards achieving the City's goal of a 20 percent reduction in greenhouse gas emissions, and whether in fact the 20 percent reduction will be achieved by the Corporation by 2005.

Relationship With the City:

On October 1 and 2, 1998, City Council adopted the recommendations of the Budget Committee contained in Clause No. 12 of Strategic Policies and Priorities Report No. 18, with respect to accessing TAF's capital reserves. This clause also contained a report (dated August 28, 1998) from the Chief Administrative Officer and the Chief Financial Officer and Treasurer which presented various options respecting TAF. These options included: the complete liquidation of the Fund and instead establishing a specific budget in the City's annual operating estimates to fund grants related to air quality improvements; partial liquidation of the fund; and the City accessing the fund for initiatives and projects within TAF's mandate. Council did not act on any of these options and maintained the status quo. It did, however, adopt the Budget Committee's recommendations in the clause, which would make TAF more efficient and accountable to the City. These recommendations included having TAF:

- establish a process so that TAF's annual expenditures are subject to the same scrutiny as other departments, agencies, boards or commissions that the City is responsible for;

- provide a detailed annual report to Council on its spending, through the Works Committee;

- seek ways to reduce its administration costs;

- review its granting policies and criteria with a view to increasing support for City-initiated projects and ensuring that funding for communities is distributed to organizations across the new City; and

- attempt to document and quantify the economic and health benefits that flow from energy efficiency and other TAF initiatives.

TAF staff advise that most of the above recommendations have or are in the process of being acted upon and that a separate status report will be issued to the Budget Advisory Committee in this regard.

Toronto Atmospheric Fund Investments:

The investments of the Toronto Atmospheric Fund are currently managed by the City's Finance Department in accordance with the City's investment policies and the Municipal Act. Under the City's investment policies, safety of principal and the ability to liquidate investments to meet operational requirements take precedence over return on investment. TAF is proposing that these funds be invested more broadly in accordance with the TAF and Trustee Acts in order to potentially increase investment income. This whole issue is currently being reviewed by the City Solicitor.

Classification of Expenditures:

A review of the 1998 financial statements with TAF staff indicated that certain expenditures incurred were not properly classified in the statements. For example, some salaries paid in the year were reported as administration charges or as communication expenses. In addition, certain grants were reported as consulting fees. It is important that all revenue and expenses are properly classified so that readers of the financial statements have a clear picture of the various sources and uses of funds in a given year. It would also be useful to segregate expenditures into grant and administration sub-categories, so that the total amount spent annually by the Fund on administration is provided.

Toronto Atmospheric Fund Foundation:

The TAF Foundation is a registered charity incorporated under the same provincial act as TAF. There had been no activity in the TAF Foundation until the spring of this year when the TAF Board endorsed the start-up of this foundation, authorized a $12,000 grant to it for legal and administrative costs and approved a grant of $50,000 for fundraising and communications expenses related to the start-up.

The goal of the TAF Foundation is to raise up to $500,000 by next spring to help finance and leverage the work and initiatives of TAF.

Conclusions:

By operating as an arms length corporation to the City, the Toronto Atmospheric Fund achieves a certain level of independence to carry out its objectives without intervention from the City. TAF staff advise that the arms length relationship also offers some other unique opportunities such as the ability to provide and structure financing for private and public institutions involved in energy savings and air quality improvement initiatives as well as securitise and leverage private capital to these type of institutions, which cannot obtain financing from conventional sources.

In October 1998, City Council was presented with various options respecting TAF, which included dissolving the Fund. It decided at that time to maintain the existing structure whereby TAF would continue to operate as a separate legal entity. Nonetheless, the TAF Board is still accountable to the City and the recommendations in this report and the October 1998 Budget Committee recommendations will strengthen that accountability.

In order for certain recommendations in this report to be implemented, a by-law must be enacted by Council under the authority of Ontario Regulations 214/96 which requires further consultation between City staff, TAF staff and TAF's solicitor.

Contact Name and Telephone Number:

Tony Veneziano, Senior Audit Manager, 392-8353;

Lorraine Searles-Kelly, Solicitor, 392-7240.

(City Council on October 26 and 27, 1999, had before it, during consideration of the foregoing Clause, the following joint report (October 25, 1999) from the City Solicitor and the Chief Financial Officer and Treasurer:

Purpose:

To respond to a request from the Audit Committee on the investment of funds held for the Toronto Atmospheric Fund ("TAF") and recent changes to the Trustee Act.

Funding Sources, Financial Implications and Impact Statement:

N/A

Recommendation:

It is recommended that if Council wishes to broaden the types of investments for the Toronto Atmospheric Fund that the City manages, then the Legislature of the Province of Ontario should be requested to make one or more of the amendments to the Toronto Atmospheric Fund Act, 1992 set out in the conclusion of this report.

Council Reference/Background/History:

The Audit Committee, at its meeting of September 27, 1999, considered the joint report of the City Auditor and the City Solicitor which addressed, in part, "the legal status of the Toronto Atmospheric Fund and its relationship with the City, particularly with respect to the Fund's $24 million in assets and the City's obligations and abilities to make decisions respecting the Fund". Recommendation No. (6) of that report is that "the Toronto Atmospheric Fund Board obtain City Council approval for any proposed changes to the investment of TAF funds as well as for any requests to amend the Trustee Act in this regard;". The Audit Committee requested "the City Solicitor and the Chief Financial Officer and Treasurer to report further to Council, on October 26, 1999, on Recommendation No. (6) contained in the report (September 17, 1999) from the City Auditor and the City Solicitor, including any legislative amendments necessary to enact the TAF proposal respecting investment of funds".

Comments and/or Discussion and/or Justification:

Section 6 of the Toronto Atmospheric Fund Act, 1992 provides as follows:

"6(1) The board of directors shall give the money of the Fund that is not immediately required for its objects to the treasurer of the City to hold in his or her care and custody.

(2) The treasurer of the City shall establish and maintain a separate reserve fund for the money received from the board of directors.

(3) The treasurer of the City may invest the money in the reserve fund in such securities as are authorized under the Trustee Act for trustees. The earnings derived from the investment of the money form part of the reserve fund.

(4) At the request of the board of directors, the treasurer of the City shall transfer to the Fund from the reserve such money as the board of directors requires to carry out the objects of the Fund."

The investments permitted under Section 26 of the Trustee Act (prior to its recent amendment) were government and municipal securities, first mortgages, Canada subsidy bonds, loan corporation debentures, trust corporation guaranteed investments, International Bank for Reconstruction and Development instruments, bank instruments, and credit union term deposits. Under Section 27 of the Trustee Act there was a further ability to invest up to 35% of the TAF funds in other classes of investments, including corporate bonds and debentures, preferred and common shares, provided that the "investment is in other respects reasonable and proper" and in accordance with other parts of Section 27.

Section 16 of Schedule "B" to the Red Tape Reduction Act, 1998 was proclaimed in effect July 1, 1999. Section 16 contained certain amendments to the Trustee Act including the repeal of Sections 26 through 34 and the replacement of them. Those sections deal with eligible investments under the Trustee Act. In particular, Section 26 now provides:

"26. If a provision of another Act or the regulations under another Act authorizes money or other property to be invested in property in which a trustee is authorized to invest and the provision came into force before section 16 of Schedule B of the Red Tape Reduction Act, 1998, the provision shall be deemed to authorize investment in the property in which a trustee could invest immediately before the coming into force of section 16 of Schedule B of the Red Tape Reduction Act, 1998."

There is some ambiguity in the new Sections 27 through 29 which replace the earlier provisions of the Trustee Act, which allowed for certain additional types of investments. Subsections 27(1), (2), (5) and (6), in particular, seem to be somewhat incongruous with the new Section 26, in that they deal with the standard of care which must be used by trustees when making investments, allow for the investment in any form of property in which a prudent investor might invest, set out a number of criteria in planning the investment of the trust property, and require diversification of the investments to meet requirements of the trust and general market conditions.

While it appears that the intent of the legislation was to set up two investment tracks, i.e. one falling under the previous investment restrictions, and the other allowing the freedom to invest in a wider range of investment vehicles, the repeal of former sections 27 to 34 of the Trustee Act make it unclear whether all of these former sections would still apply so the full effect of the deemed continuation of permitted investments under the new Section 26 is achieved.

Under Sections 8, 9, 10, 12, 13 and 15 of Schedule B of the Red Tape Reduction Act, 1998, the trustee investment provisions of the Law Society Act, the McMichael Canadian Art Collection Act, the Ontario Heritage Act, the Public Accountancy Act, the Public Guardian and Trustee Act, and the Science North Act, respectively, have been specifically amended to permit the wider range of investments permitted under the new Sections 27 to 29 of the Trustee Act (i.e. ...Sections 27 to 29 apply with necessary modifications to those investments). Given that those specific changes were made seems to support the view that the investment powers of the City under the Toronto Atmospheric Fund Act, 1992 have not been changed by the recent amendments to the Trustee Act. Counsel for the Office of the Public Guardian and Trustee has advised TAF of their position that the Section 26 amendments to the Trustee Act apply to the Toronto Atmospheric Fund Act, 1992 (i.e., to maintain the status quo).

TAF's solicitor, Clifford Goldfarb (of the law firm Farano, Green) is of the view that the legislation should be interpreted to allow for investments from the list of the former Section 26, provided that they are done in accordance with the new standard of care contained in and to the extent required under the new Section 27. He states that failure to invest as broadly as required would result in potential liability to the TAF Board of Directors. Currently the City Treasurer invests the TAF funds in accordance with the City's investment policy, which does not exploit the full range of potential investments under the Section 26 Trustee Act list of eligible investments. The City Treasurer has also not made its investment decisions respecting the TAF funds subject to TAF Board direction or approval, based on the wording of the Toronto Atmospheric Act, 1992. TAF's solicitor is concerned that the TAF Board, rather than the City, would be subject to potential liability if a claim were brought against TAF for not generating an adequate return on its investments to fund more projects, and believes that the City should indemnify TAF if the City takes the position that the City has been delegated the authority for investing TAF funds. Alternatively, he is of the view that the City should seek amendments to the Toronto Atmospheric Fund Act, 1992, which would clarify that the corporate power, authority and responsibility of the TAF Board [as set out in Section 23 of the Corporations Act, and particularly ss. 23(1)(t).to invest and deal with the money of the company not immediately required for its objects in such manner as may be determined..] has not been given to the City with respect to investment of the TAF funds under Section 6 of the Toronto Atmospheric Fund Act, 1992. It points to the tension between TAF's status as a statutory corporation, subject to certain Municipal Act (and Regulation) constraints.

If Council is of the view that it wishes to expand the scope of TAF's investment powers, or to allow TAF to hold the principal of the TAF grant (approximately $24 million), so that it can be invested in more diverse instruments, or to provide that the TAF Board has authority to invest the TAF funds rather than the City Treasurer on behalf of the City, or to provide that the TAF Board has the authority to direct the City Treasurer on how the TAF funds are invested, the City could request that the Legislature amend the Toronto Atmospheric Fund Act, 1992, to give effect to any one or more of these propositions. It is our opinion that the investment power under the Toronto Atmospheric Fund Act, 1992 was never given to the TAF Board and is vested in the City, under the direction of the City Treasurer. However, in light of the issues raised by TAF's solicitor with respect to the recent amendments to the Trustee Act, the City could either seek clarification by way of legislative amendment or, alternatively, the City could provide the TAF Board with an indemnification with respect to the standard of care for investing set out in Section 27 of the Trustee Act for those TAF funds which the City invests on TAF's behalf.

In response to a memo dated March 12, 1999 from TAF's solicitor to the TAF Board on a proposed third party TAF investment portfolio manager, one of the City Treasurer's recommendations was that: "The Toronto Atmospheric Fund maintain its current relationship with the City of Toronto for the investing and managing of its present investment base." In the absence of an investment policy approved by Council for the TAF funds, the City Treasurer continues to invest the funds to maximize the rate of return within the parameters of safety of principle and maintaining a high degree of liquidity.

In the event that Council adopts the change set out in A(1) of the conclusion to this report, the TAF Board could be requested to develop an investment policy that defines their objectives regarding liquidity, performance and asset mix as well as their risk tolerance. That recommended investment policy would then be approved by Council so that the City Treasurer could invest the TAF funds in a manner that is consistent with the policy to achieve TAF's investment objectives. If the policy includes investments in assets that are not currently being managed by the City such as equities or corporate bonds, the Treasurer will endeavour to identify an appropriate external fund manager in conjunction with the TAF Board and monitor and report on their performance on a quarterly basis, and the external fund manager's service fees would be deducted from the annual income available for TAF's use. The adoption of the change set out in A(1) below is the Treasurer's preference.

Conclusions:

A. If Council wishes to make changes to the manner in which the TAF funds are currently invested, Council can:

(1) Direct the City Treasurer to diversify the TAF funds portfolio, to the extent permitted under the Trustee Act (i.e. what was permitted prior to the amendment of the Trustee Act); or,

(2) Request that the Ontario Legislature amend the Toronto Atmospheric Fund Act, 1992, to provide that the City Treasurer can invest the TAF funds in the manner set out in the new Trustee Act, Sections 27 to 29; or,

(3) Request that the Ontario Legislature amend the Toronto Atmospheric Fund Act, 1992, to provide that the TAF Board can invest the TAF funds in the manner set out in the new Trustee Act, Sections 27 to 29; or,

(4) Request that the Ontario Legislature amend the Toronto Atmospheric Fund Act, 1992, to provide that the TAF Board can direct the City Treasurer on the investment of the TAF funds in the manner set out in the new Trustee Act, Sections 27 to 29.

OR

B. Council can direct the City Treasurer to maintain the status quo.

AND

C. If any one of Recommendations A(1), A(2) or B are adopted, Council may wish to either:

(1) Authorize the indemnification of the TAF Board (by the City) with respect to the standard of care set out in Section 27 of the Trustee Act and the City's investment of the TAF funds; or

(2) Request that the Ontario Legislature amend the Toronto Atmospheric Fund Act, 1992, to exempt the TAF Board from the standard of care set out in Section 27 of the Trustee Act with respect to the investment of the TAF funds by the City.

Contact Names:

L. Searles-Kelly, Solicitor, 392-7240

Al Shultz, Director of Accounting Services, 397-5240)

(City Council on October 26 and 27, 1999, received this Clause, for information.)

(a) Request for Proposal for the Acquisition of 2,000 optical Scan Vote Tabulators and 100 Touch Screen Voting Units.

The Audit Committee reports having recommended to City Council, at its meeting held on September 28, 1999 (Administration Committee Report No. 5, Clause No. 1) that:

(1) the City Clerk issue a new Request for Proposal for the vote tabulation equipment for the election in November 2,000, with specific requirements for purchase, rental, rent-to-buy and leasing options; and

(2) the proposal also include the right of the City to sublet the voting equipment to other jurisdictions.

The Audit Committee also reports having requested the City Auditor to forward directly to Council a copy of the Mississauga Proposal Call for vote tabulation equipment for its meeting to be held on September 28, 1999:

(August 24, 1999) from the City Auditor and City Solicitor.

(b) Toronto Police Service Metropolis Software - Business Plan.

The Audit Committee reports having received the following report for information:

(August 9, 1999) from the Chairman, Toronto Police Services Board respecting Toronto Police Service Metropolis Software - Business Plan, and recommending that the Audit Committee receive the following report for information.

(c) 1999 Management Letter Summary - Community Centres and Arenas.

The Audit Committee reports having:

(1) deferred consideration of the following report until the meeting of the Audit Committee to be held on October 25, 1999; and

(2) forwarded the report to all community centres, arenas and A.B.C. Reduction Task Force for comments:

(i) (August 30, 1999) from the City Auditor respecting 1998 Management Letter Summary - Community Centres and Arenas, and recommending that:

(1) As part of its mandate the recently structured ABC Reduction Task Force should, on a priority basis, review the governance of all community centres and arenas in the City. The objective of such a review process should include the integration and streamlining of all duplicated activities;

(2) The Chief Financial Officer and Treasurer immediately initiate a plan to provide the appropriate support for the accounting needs of all community centres and arenas. The preparation of specific timetables, year end working paper and reconciliation requirements should be incorporated into this support;

(3) City Finance staff should prepare standardized written policies and procedures for all community centres and arenas. Where possible and appropriate, these policies and procedures should be consistent with those of the City;

(4) Community centres and arenas should be instructed by City Finance staff that under no circumstances will they be permitted to make expenditures which are not included in their annual approved budget submissions;

(5) The Chief Financial Officer and Treasurer give consideration to the standardization of all accounting systems at each of the community centres and arenas. In the longer term, all accounting should be done centrally using the City's new SAP accounting system;

(6) The Chief Financial Officer and Treasurer, in consultation with City Legal Services, review the present arrangements relating to the organization of each separate non-profit charitable corporation within each community centre. Arrangement should be made to immediately separate the accounting function of the non-profit organizations from those of the centre. Monthly financial reporting, as well as year end financial reporting, should be conducted separately;

(7) The Chief Financial Officer and Treasurer be required to review all annual financial statements of arenas in order to determine the extent of funds owed to the City. The Chief Financial Officer and Treasurer be required to collect all surplus funds owed to the City on an annual basis;

(8) The Y2K City Project Team, as a priority, should review its work plan in order to ensure that adequate attention is being given to each community centre and arena. The Y2K Team should review the work completed to date at each of these entities in order to ensure that adequate attention has been given to the issue;

(9) In order to avoid penalties and interest charges, management should ensure that all payments to employees, including car and laundry allowances, are included as part of salaries and wages, subject to statutory deductions. All increases to salaries and benefits should be approved by the respective Boards and Committees and documented in writing;

(10) For those arenas and community centres where no fixed asset listing is prepared, priority should be given to creating a fixed asset register. The register should include details of the source of the items (i.e., supplier, invoice number), the cost and the date of acquisition. A physical inventory of all furniture and equipment should be conducted annually and agreed to the fixed asset listing; and

(11) All arenas and community centres be requested to submit management letters to their respective Boards along with appropriate responses; and

(ii) (September 24, 1999) from Anne Dubas, CUPE Local 79.

Respectfully submitted,

DOUG MAHOOD

Chair

Toronto, September 27, 1999

(Report No. 6 of The Audit Committee, including additions thereto, was adopted, as amended, by City Council on October 26 and 27, 1999.)