The city’s deadly secret: How a damning report about the Red Hill was kept hidden for years until The Spectator forced its release
Nearly 13 hours had passed since the start of a city council meeting, including six hours behind closed doors, when Hamilton's acting city manager emerged from the closed session and publicly revealed something shocking.
The city had been sitting on a hidden report that showed friction concerns on the Red Hill Valley Parkway (RHVP). This report contradicted what the city had been saying publicly for years - that the road was safe. That's despite concerns raised by everyone from police to roads staff to crash victims, that the road was slippery, especially when wet.
By 2019, six people had died on the parkway since it opened, including four lives lost since the city received the friction report in early 2014.
So after that marathon meeting on Feb. 6, 2019, around 10:30 p.m., Mike Zegarac did something rare in municipal politics: He said sorry.
On behalf of the City of Hamilton, staff apologize to council and the general public for how this matter has come to their attention," he said publicly, before the city released the newly discovered Tradewind Scientific report that found quite low friction values" on stretches of the crash-prone parkway.
Everything said that night was carefully scripted, the result of months of meetings with city management, legal counsel and communications staff, according to city emails and documents. They had a crisis communications plan and talking points to focus on how the city was already fixing the problems, including safety studies, expediting resurfacing the roadway and lowering the speed limit. The intention appeared to be to try to minimize attention on the damning safety study.
It's not clear what was said in that six-hour, closed-door meeting, but what is apparent, according to internal city emails and meeting notes, is that city staff were compelled to alert council because their hand was being forced by a Spectator request.
The city could have revealed the report any time in the months after it was discovered, but did not. Nor did the city staffer who received the report in 2014 - former engineering boss Gary Moore - ever share it with council or senior staff, according to the city.
This information is spelled out in documents and testimony from an ongoing public inquiry into the Red Hill Valley Parkway scandal, which was requested by council in 2019. The public hearings began this April and are expected to continue throughout the summer. By April, the cost of the inquiry had reached $13.3 million, with council anticipating the final price tag to be between $18 million and $20 million.
The accuracy and context of facts in the emails and summary document can still be challenged by inquiry participants and witnesses. Inquiry commissioner Justice Herman Wilton-Siegel will publish a final findings of fact" and recommendations at the end of the inquiry, which is still months away.
The Tradewind Scientific report was found by chance in September 2018 by Hamilton's then-newly appointed engineering director Gord McGuire, who was familiarizing himself with the RHVP ahead of some anticipated resurfacing.
City staff said repeatedly in 2019 that the discovery had nothing to do with the fact that The Spectator filed a freedom-of-information (FOI) request looking for friction testing.
But summary documents released as part of the ongoing public inquiry into the parkway show that's only partly true. McGuire did find the friction report on his own while going through RHVP files, but that is not what prompted the city to make it public.
Inquiry documents reveal that the reason city staff brought the buried friction report to council's attention was concern about liability because the document was about to be released because of a request I made as part of my work for The Spectator.
The request
In late October 2018, I filed a request for friction documents under the Municipal Freedom of Information and Protection of Privacy Act. Records show this is what spurred dozens of urgent" meetings with lawyers. The city had a problem: they legally were going to be forced to release the report to me and it contradicted the messaging city staff had been saying for years about the parkway being safe.
I am meeting with the (general manager) of public works as well as the director of legal services and John McLennan of our office concerning an FOI request to release this report. I take it that they do not want to release this report," Diana Swaby, the city's supervisor of claims administration and risk management, emailed a law firm Nov. 26, 2018.
FYI - the preliminary thought is that this report will have to be released to the requestor. Obviously not a good turn of events for any of our RHV(P) files," John McLennan, the city's manager of risk management, wrote in a Nov. 30, 2018, email.
The worry, according to multiple records revealed by the inquiry, is that they would have to give me the report and The Spectator would run a story that contradicted everything the city had been saying for years about the road's safety. Then - and this is the key point - there was concern the information could be used in civil cases against the city for crashes. They were worried about liability.
This is not a story about The Spectator, although the newspaper and its reporters feature prominently throughout the summary documents released at the inquiry so far. This is a story about transparency and why this information about the safety of a road - on which people were dying - was hidden from the public.
You can't handle the truth
When the city finally revealed the buried friction report on the night Zegarac apologized, the scandal was twofold. First, there were serious safety concerns on the road, where people had continued to crash and die for years after the city had been informed of a friction problem. Second, the public had been kept in the dark about it - and told lies about its existence and conclusions - for years.
Since the RHVP first opened in 2007, there had always been rumours about it being slippery or dangerous. Every time there was a crash, The Spectator would inevitably hear the rumours. Emails revealed in the inquiry show the city frequently heard these same concerns, including from roads staff, police and concerned citizens.
The calls to investigate the parkway and make it safer became louder after a series of crashes, especially the 2015 deaths of 19-year-old best friends Olivia Smosarski and Jordyn Hastings, killed when their car went through the grassy median and into oncoming traffic.
For years, it wasn't even clear that friction testing had ever been done on the road. There are no provincial standards and it's not mandated. No report went to council.
The person at the city who did know was Moore. The former director of engineering was involved in the Red Hill project from its inception and when it came to that road, people deferred to his expertise. He had Golder Associates do a safety study on the parkway in 2013, with Golder subcontracting the friction testing to Tradewind in November 2013.
He received the Tradewind report in January 2014, but it was never shared with other senior staff or council, the city has told the inquiry. He only downloaded it into an internal document management system May 15, 2018, while he was preparing to retire from the top engineering job.
The Spectator first asked Moore for friction tests results in 2017. His answers were vague and he refused to share any actual results.
In an award-winning 2017 investigation, The Spectator found a disproportionate number of crashes were happening on the RHVP, including in certain hot spots.
Moore was quoted in that article saying that there was no official friction report available, only an informal chart." The friction testing was not fulsome and the results were inconclusive," he said.
All we got was an indication that we should do further work," Moore told The Spectator at the time. It was moot when we decided to go ahead with (repaving)."
He refused to share that chart with The Spectator.
No one ever releases (that type of) information ... because it's the first thing anybody (would use in a) lawsuit," Moore said.
The Spectator also asked other city representatives, including communications staff and council, for friction testing. Emails released for the inquiry show messages bouncing around, looking for someone who knew about friction testing.
Among the people included in some of those messages was Martin White, manager of traffic operations and engineering. White has already appeared at the RHVP inquiry and said he never saw any friction testing, but was aware it had happened based on Moore's word. The work was marked as complete on a public report that went to council, yet city staff - other than Moore - have consistently told the inquiry that they never saw the report.
There was a continuing theme" of people asking for the results of the friction testing and having no results," White testified at the inquiry.
Through 2017 and 2018, I repeatedly asked for friction testing results and never got a clear answer. This is why The Spectator finally filed the freedom-of-information request in October 2018.
Testimony at the ongoing inquiry has shown the city's concern about liability went beyond what might happen if the city was forced to release the friction document to The Spectator.
Ludomir Uzarowski, an engineer from the consulting firm Golder who oversaw the construction of the RHVP, told the inquiry it was clear to him in meetings with City of Hamilton staff that the concern was about avoiding blame and liability.
He was brought back in to do work for the city when they were looking for advice on resurfacing the road. It was during conversations about this roadwork that Uzarowski was sent The Spectator's 2017 investigation into the RHVP - and that's when Uzarowski said he first learned about the number of deaths in crashes on the road.
In a February 2018 meeting with city staff, Uzarowski said he recommended doing shot blasting - a short-term solution that would increase the friction on the road. Uzarowski said he was told several times that wouldn't happen because it could open the city to liability.
I was informed that the city couldn't do it because that would confirm that there was a problem with the RHVP and the public would blame the city," he told the inquiry. He claimed Marco Oddi, senior project manager for the Red Hill and current manager of construction, was among the staff who said this.
It wasn't until December 2018 that Uzarowski learned about McGuire finding the buried friction report. By that time, the city was holding multiple meetings about the damning friction report and what would happen if it was released to The Spectator.
During a meeting Dec. 3, 2018, between McGuire, his administrative assistant and an unnamed legal counsel, McGuire spoke at length about discovering the report and the city's response to the FOI.
According to minutes of that meeting revealed in inquiry documents, McGuire spoke about a conversation he and Dan McKinnon, then director of public works for the city, had with Moore about the Tradewind report. The unnamed lawyer asked McGuire about the conversation.
McGuire asked the lawyer if he'd ever seen the movie with the famous Jack Nicholson line: You can't handle the truth." McGuire said their conversation with Moore was close," according to minutes of the meeting revealed for the inquiry.
He described Moore's position that the friction document wasn't useful, implying that that was why it was never released. There is no standard in Ontario or Canada for friction testing and the test didn't tell him anything, Moore apparently told McGuire and McKinnon in that tense 2018 meeting.
McGuire's meeting with the unnamed lawyer lasted an hour and 23 minutes, according to an excerpt included in the inquiry documents. Part of the conversation includes McGuire going through the history of the road - and concerns about friction over the years - and not understanding why more wasn't done to address the issue earlier.
It's like, it's like you've got a really crappy car. And you know, it's not running well, but you're gonna take it to the paint shop and get the paint redone. But you're still gonna have this crappy car," he said, according to minutes of the meeting.
The unnamed lawyer tells McGuire they have no control over what is or isn't released through the FOI.
Do they get full access to all this information?" McGuire asks.
They do, yes," the unnamed lawyer replies.
So now the worry was that the city was going to be forced to release the document to The Spectator. The lawyer asks: How do they stay quiet about this? Isn't there an obligation to inform council?
Probably (The Spectator) is going to release a story around our friction testing that is inconsistent with our previous message," McGuire says.
Spinning the message
McGuire says in the meeting he wants to change that story, spin it into how the city is taking action.
So the message I would like to bring forward is, yes, we're aware of it. We know it's not a great response, but here's what we're doing right now," McGuire says.
Among the apparent strategies explored by the city was whether there was legal loophole that would allow them to release the report, but without its final conclusions about friction and recommendation for more investigatory work." City staff also considered releasing the report to The Spectator ahead of time, but that was abandoned, according to inquiry documents.
The city strategy became focused on getting ahead of the story. Engineering managers, communications staff and lawyers had multiple meetings to talk about this. It was decided they needed to tell council what was happening.
Council was first briefed about the issue in a secret meeting Jan. 23, 2019. The purpose of (this legal report) is to advise council of the potential litigation arising from the release of city records relating to friction testing on the Red Hill Valley (Parkway) as a result of a freedom-of-information request."
Council was told because of legal concerns and because of The Spectator's FOI, not because McGuire found the report and not because of safety concerns. If staff thought they needed to know because of safety concerns, that was not reflected in any of the publicly released documents.
Other pressures were also swirling at this time. There was an ongoing value-for-money audit happening about the Red Hill Valley Parkway in which the friction report could be released. And a lawyer in an ongoing civil case had asked about friction testing. All of these pressures lead to that Feb. 6, 2019, general issues committee (GIC) meeting at which council voted to make the Tradewind report public.
A week before that meeting Mayor Fred Eisenberger, who was already briefed on the friction report discovery, emailed city staff to ask that the reference to the Red Hill report be taken off the meeting agenda to avoid tipping off the media.
There is concern that the open reports will trigger the media interest and questions," Eisenberger wrote.
As city staff prepared for that meeting, they had a crisis communications plan in place. This included preparing answers for possible questions they might receive.
One of the suggested questions included: How is it possible that these were not shared previously, especially when asked repeatedly by The Spectator?"
The answer: The short answer is, we did not do a good job of sharing the report internally, and it doesn't appear that staff knew about it."
Meanwhile, The Spectator had not heard from the city for months about the FOI request, surpassing time limits mandating response under the FOI legislation. The day before the GIC meeting, I emailed the city's FOI co-ordinator asking for an update and pointing to a vague reference to something about the Red Hill and friction that made it onto the GIC agenda for the next day.
The Spectator was told the city's access and privacy officer was reviewing more than 600 records and would be preparing an interim decision.
The next day the city dropped the bombshell.
Nicole O'Reilly is a crime and justice reporter at The Spectator. noreilly@thespec.com