Updated: Hamilton will release confidential legal documents to Red Hill public inquiry
The city has been ordered to release most of the privileged" documents it sought to withhold from a judicial inquiry into the safety of the Red Hill Valley Parkway.
Council met Friday to discuss the ruling by retired judge Frank Marrocco but will not appeal the decision. That means most of the disputed documents - primarily legal advice - will be made public as judicial inquiry evidence in the coming days.
City council voted in 2019 to ask a judge to investigate the circumstances behind a troubling safety report on the collision-prone parkway that was inexplicably hidden for years.
The buried road-friction tests - made public in part due to a Spectator freedom-of-information request - spurred emergency repaving and ongoing lawsuit threats against the city by collision victims.
The city turned over tens of thousands of documents to the inquiry, and public hearings began in late April with Superior Court Justice Herman Wilton-Siegel as commissioner.
But Hamilton disagreed with inquiry requests to provide dozens of additional documents, arguing they were legally privileged" and should remain confidential. In a release, the city noted Hamilton's insurer strongly supported" the effort to pursue legal privilege for some documents - some of which could be of interest to individuals seeking to sue the city over parkway safety.
Any document turned over to the inquiry as an exhibit becomes public.
Inquiry lawyers argued the documents were required for the judicial investigation and that council had waived any privilege over the documents when it requested the inquiry.
The Spectator also made a submission asking for all relevant documents to be turned over to the inquiry, arguing withholding them would undermine the stated rationale of the probe.
Several councillors stated early on they preferred a judicial inquiry over a cheaper auditor-general investigation specifically because of the transparent nature of the probe, which includes public testimony and cross-examination.
The inquiry price tag is now expected to reach at least $26 million - in part due to legal wrangling and delays over documents produced by inquiry participants.
A city motion on the dispute was heard by Marrocco, a retired judge, earlier this month.
Marrocco ruled the city has waived privilege over any documents highly relevant" to the inquiry's terms of reference. A synopsis of the decision for council says that means the city has been directed to produce some or all of 51 of the 64 unique documents under dispute.
The newly released documents may delay public hearings from restarting as originally anticipated Aug. 29, said inquiry lawyer Emily Lawrence.
She said the inquiry will likely have to interview additional witnesses as a result of the new information. Thousands of pages of inquiry overview documents must also be updated.
The hearings have already featured public testimony from 40 witnesses including former city engineering boss Gary Moore, who answered questions about a now-infamous 2013 report showing low friction on the roadway that he did not share with other city staffers or the public.
Moore has argued the friction report was incomplete and did not make sense.
Matthew Van Dongen is a transportation and environment reporter at The Spectator. mvandongen@thespec.com