Elected leaders in Hamilton to meet over ‘Red Hill Valley Parkway Inquiry privilege matter’


Published August 18, 2022 at 2:51 pm

One of the likely last acts of the current city council will be holding a closed meeting, to decide the City of Hamilton response to a ruling about which sensitive documents related to a cover-up should be public in a public inquiry about said cover-up.

Friday morning, the elected leadership of Hamilton will hold what is being termed a special meeting, called by Mayor Fred Eisenberger, regarding what a communiqué from the city calls a “Red Hill Valley Parkway Inquiry privilege matter.” The release referred to a matter that was recently before the Hon. Frank Marrocco, the associate chief justice of the Ontario Superior Court, whom the inquiry’s lead justice has assigned to determine how the inquiry will handle documents and how much of that portion of the inquiry will play out before the public. (The inquiry is streamed live on a dedicated YouTube channel.)

The meeting will be just hours before the deadline to file registration papers to run in the Oct. 24 municipal election.

The inquiry, whose costs are expected to reach the $26M-$28M range, centres on why a 2013 report from Tradewind Scientific about the slipperiness of some parts of the RHVP was buried for six years, until 2019. In the six years in between the report and its revealing, there were fatal collisions on the expressway, starting with the 2015 deaths of two young women, Jordyn Hastings and Olivia Smosarki. (The Red Hill’s speed limit has been lowered to 80 km/h, from 100, after the city commissioned another safety report from another contractor.)

Hamilton councillors were told earlier this month there is little recourse to pump the brakes on the costs of a judge-led inquiry. On Monday, Justice Marocco ruled that about 100 disputed documents are in play. The inquiry, led by Justice Herman Wilton-Siegel, is due to resume on Aug. 29.

“The issue related to legal documents that included legal opinions as well as correspondence between City staff and legal counsel, including external legal counsel, as it relates to the Red Hill Valley Parkway,” reads a statement from Richard Brennan, the city’s RHVP Inquiry communications lead. “The City’s position was that these documents were subject to solicitor-client privilege and litigation privilege. This was a position endorsed and strongly encouraged by the City’s insurer.

“Mr. Marrocco issued his ruling on August 15, 2022 confirming that the documents in question are privileged but held that through the act of calling the Judicial Inquiry the City waived privilege over a majority of these documents as they are relevant to the Inquiry’s Terms of Reference and should be produced by the City.

“The Mayor has called a special council meeting for tomorrow August 19, 2022, where the City’s external counsel for the Inquiry and counsel for the RHVP litigation will be providing them with an overview of the decision for the first time, and will be seeking Council direction on the options available to them. This was the earliest opportunity Council could meet with its external counsel on this matter.”

The meeting on Friday is scheduled for 9:30 a.m.. While all council meetings are streamed and archived on YouTube and hamilton.ca, councillors often do go in-camera when they are getting advice from the city’s lawyers.

The meeting, which was called with under 48 hours’ notice, will fall just 10 days before the RHVP Inquiry resumes. It has already faced delays after the Justice Wilton-Siegel contracted COVID-19 last month.

The city says it will try not to delay the resumption of the hearing, whose first phase is expected to carry into next year.

“I anticipate that the City will be in a position to provide more information on this issue, including Council’s decision and the impact this may have on the start of the hearing, currently scheduled to resume on August 29, 2022,” the release on Thrusday stated.

“Commission Counsel has advised that there are a number of tasks that need to be completed between the release of Mr. Marrocco’s decision and the resumption of the hearing,” it adds. “The City’s Inquiry Counsel is committed to working with Commission Counsel to ensure there is no or minimal impact on the hearing resuming as quickly as possible. We will have further details on this following the Council meeting.”

The damning report from Tradewind Scientific showed that the friction on stretches of the city-owned RHVP, which opened in 2004, fell well below safety standards from the United Kingdom. North America has no such safety standards, even though personal motor vehicles are, on average, heavier and more powerful than they were 30 or 40 years ago.

The report came to light in the spring of 2019, the first term of the current council. While an auditor general investigation would have been faster and cheaper (around $300,000), council voted 13-2 in favour of an inquiry in order to address the widespread public inquiry. At that time, it was anticpated it would cost about $11 million.

Eisenberger and current Couns. Maureen Wilson, Nrinder Nann (3), Sam Merulla (4), Tom Jackson (6), Esther Pauls (7), John-Paul Danko (8), Brad Clark (9), Maria Pearson (10), Arlene VanderBeek (13), Terry Whitehead (14) and Judi Partridge (15) voted in 2019 to hold the inquiry. So did then-Ward 5 rep Chad Collins, who is a now a Liberal member of Parliament.

Both “no” voters, Couns. Brenda Johnson (Ward 11) and Lloyd Ferguson (12), are not seeking re-election.

The last such special council meeting was last August, to vote for the reinstatement of its anti-encampments bylaw, which has been suspended for over a year due to a court injunction. That vote allowed the city to resume tearing down unhoused peoole’s tents and makeshift shelters on public land.

INthehammer's Editorial Standards and Policies