LRT investigation: Commissioner shoots down requests to keep documents secret

During the LRT commission’s investigation, Justice Commissioner William Hourigan considered applications asking for evidence to be silenced.

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The judge overseeing the LRT investigation will not allow claims of confidentiality to prevent the commission from learning as much as possible about the Confederation Line’s problems.

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The investigative hearing will begin its final week on Monday with eight witnesses who will testify over four days.

The week kicks off with city manager Steve Kanellakos testifying in the morning, but the final word on Thursday goes to executives with the Rideau Transit Group.

During the LRT commission’s investigation, Justice Commissioner William Hourigan considered applications asking for evidence to be silenced.

The city of Ottawa was among the parties trying to withhold stacks of documents from the investigation, but Hourigan was not listening to the city’s call to secrecy.

“Essentially, the city’s application is a series of broad claims to suppress documents, which are totally unsupported by any compelling factual or legal basis for doing so,” Hourigan wrote in his June 10 decision.

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The city argued that approximately 1,600 documents, or portions of them, should not see the light of day because they contain sensitive information related to procurement, risk analysis, independent certifier decisions and findings from Transportation Research Associates, the Philadelphia-based firm hired to assess the return of the LRT system after the second derailment last year.

Commissioner Justice William Hourigan leads the public inquiry of the Ottawa Light Rail Transit.
Commissioner Justice William Hourigan leads the public inquiry of the Ottawa Light Rail Transit. Photo by ERROL MCGIHONpost media

Most of the city’s concerns have been about the release of sensitive commercial information.

The city also wanted editorials of information on the Phase 2 capital budget and all term sheets, which are business agreements. On this, Hourigan was open to further arguments. (Under the mandate of the commission, Phase 2 is not part of the investigation.)

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It wasn’t the city’s only request to shield evidence from the public.

The city was concerned about some WhatsApp group messages becoming public, arguing that attorney-client privilege and procedural law should keep the messages secret.

The committee learned of the WhatsApp chats with city officials after city adviser STV produced the instant messages as part of the evidence disclosure process.

This time, arbitrator Frank Marracco had to make a decision on the city’s request.

In a decision released on June 21, Marracco allowed the city to remove phone numbers and personal information from the chats, but the arbitrator did not accept the city’s claim to the privilege. Most of the content of the messages was released.

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The city was not the only organization seeking to hide evidence during the investigation.

Infrastructure Ontario (IO), a provincial Crown agency, has filed a request to make about 2,300 tender and advice-to-government documents confidential, which would have blocked their release to research participants and the public. The agency suggested that only participants’ lawyers be allowed to view the material.

The commissioner fired IO’s request with gusto, pointing out that such a confidentiality order would conflict with what the investigation was being asked to do.

“The Commission is tasked with getting answers for the people of Ontario about what happened in the (Phase 1) Project and how we can prevent the problems from happening again,” Hourigan wrote in his decision.

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“All participants must commit to getting those answers, and it must be clear to them that if thousands of relevant documents are withheld, no solutions will be found.”

The Rideau Transit Group has also filed a confidentiality claim regarding documents before an arbitration between its construction arm, Ottawa Light Rail Transit Constructors, and train maker Alstom. The companies wanted their sensitive financial information to be protected from disclosure.

Hourigan allowed the companies to make “reasonable redactions” in the documents.

During the investigative hearing, Hourigan showed that he has no time for witnesses to evade questions or speculate whether evidence could be confidential.

A notable moment was when Deloitte financial adviser Remo Bucci said he had to be careful with his evidence because of “confidentiality”.

Hourigan interrupted the interrogation.

“We’re here for a public inquiry,” Hourigan said. “We don’t hide behind confidentiality. We do not answer questions as they could be confidential. If there’s a problem with anything you say, someone will let us know, but at this point you should feel free to answer questions fully.”

On the other hand, there have been times when Hourigan or attorneys have stopped a witness from speaking if the evidence violated the client attorney’s privilege or got into pending legal disputes.

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