Mayor Fred Eisenberger regrets backing Red Hill probe amid escalating costs
Nobody's to blame for the escalating cost of a multimillion-dollar public probe into Hamilton's crash-prone Red Hill Valley Parkway, the city's legal expert says.
This is, in some ways, the unpredictable nature of judicial inquiries," Eli Lederman told council.
In 2019, council voted to ask a judge to probe the circumstances of a troubling asphalt friction testing report on the parkway that had been buried for five years.
The judicial inquiry - which Mayor Fred Eisenberger says he now regrets supporting - started public hearings this past spring, but witnesses are expected to continue testifying through the fall.
If I knew then what I know now, would I have decided to follow through on a judicial review? I think most of us would probably answer no," Eisenberger said Monday.
At the time, council opted not to pursue cheaper and faster options, such as an auditor general or ombudsman probe.
The initial cost estimate of the inquiry was between $2 million and $11 million, but amid delays, that forecast has spiked to as much as $28 million. So far, $18 million has already been spent on the probe.
The report attributes the rising costs to the inquiry commission decision to allow witness rescheduling, as well as more interviews for a dispute over privileged" legal documents the city argues should be kept secret.
A closed-door hearing was held Tuesday to hear arguments for and against making the at-issue documents part of the judicial inquiry - and therefore public.
While the city says the nearly 100 disputed documents are largely legal opinions and advice that should be protected, lawyers for the inquiry argue council waived that legal privilege when it specifically requested a transparent judicial investigation into the slippery Red Hill mystery.
Many of the disputed documents fall within the fall 2018 to February 2019 time frame when the city rediscovered" a troubling report on Red Hill friction that had been hidden from the public for years.
Without the requested documents, inquiry commissioner Herman Wilton-Siegel will be missing an important piece of the puzzle," reads a factum submitted by inquiry lawyers ahead of the private hearing.
It raises serious concerns if the commissioner is asked to make findings of fact and misconduct without access to all relevant documents."
The Spectator is arguing in support of releasing all relevant city documents to the public inquiry. A decision on the matter is not expected immediately and could take until the end of the month.
Coun. John-Paul Danko asked Lederman to respond to criticism that the hiked price tag is the city's fault or that its legal team hasn't been forthcoming" with commission counsel.
When a budget is set for a judicial inquiry, the true sense" of the volume of documents, the number of witnesses that are to be called, or issues of privilege can be hard to pin down, Lederman said.
So it's not any party's fault that costs have escalated, he contended. That is the unfortunate reality" of a judicial inquiry that's charged with looking under every stone to answer a broad set of questions."
Eisenberger also asked Lederman to respond to accusations that the city is not co-operating with commission counsel and deep-sixing documents."
Out of an initial three million files that were initially identified, 62,500 were deemed truly relevant" to the inquiry while 1,000 were considered privileged. Of those, only a fraction remain at issue," the lawyer said.
Early in the process, Wilton-Siegel said he was disappointed" by delays in receiving documents from inquiry participants, which also include the province, consultants and construction contractors.
Lederman noted the city auditor's office has also expressed some objection" to provide documents the commission counsel has requested, which could turn into an additional cost.
The office, which has its own legal counsel, is resisting that based on their independence" under provincial legislation, he noted.
Framing his question as inane," Coun. Tom Jackson asked what would happen if council hypothetically" said no to covering the rising price tag of the inquiry.
Once a judge-led inquiry is underway, that is a commitment," and there's not much" that council can do about the costs, Lederman said.
As of July 31, 40 witnesses had appeared before the inquiry, which the city is covering through its tax stabilization reserve.
The expense will leave the reserve with a negative balance, which the next council will have to handle in budget talks. So we'll have to deal with this in 2023," said Mike Zegarac, general manager of finance.
-With files from Matthew Van Dongen
Teviah Moro is a reporter at The Spectator. tmoro@thespec.com