Hamilton will spend millions to do judicial inquiry into Red Hill Valley Parkway report

Hamilton city council will spend as much as $11 million to do a judicial investigation into how a damning Red Hill Valley Parkway (RHVP) report stayed buried for six years.

Council ignored the opinion of lawyers Wednesday and voted for an inquiry because the process is public. An auditor general or ombudsman investigation — which the lawyer recommended — is only about $300,000, but the interviews aren't done in public. Only the findings are released in a public report.

That's not good enough, some councillors said.

"People died on Red Hill," said Terry Whitehead, Ward 14 (west Mountain) councillor. 

"We've lost the confidence of this community. This is grander than this investigation. This is about an open and transparent process."

Arlene VanderBeek, Ward 13 (Dundas-Flamborough) councillor, said this is "as much about public trust as it is the need for an investigation.

"We owe it to the public to bare our soul. Let what happens happen, and let it happen publicly."

The city will now hire a judge to launch an investigation, complete with public hearings. That investigation will examine how and why the public only learned in February of a 2013 report showing parts of the highway were too slippery to meet UK safety standards.

Some local MPPs, including NDP party leader Andrea Horwath, have called for a judicial inquiry.

But on Wednesday, Eli Lederman, a lawyer with Toronto-based firm Lenczner Slaght Royce Smith Griffin, told council not to pursue a judicial inquiry.

Inquiries are expensive — Lederman estimated $1 million to $11 million — and tend to take at least a year and a half. They often go over budget, Lederman said, and take longer than anticipated.

The Red Hill issue would be better suited to an auditor general or ombudsman report, which would wrap up in a few months.

"Judicial inquiries are better suited for large, complex investigations and, as such, tend to be expensive and length," he said.

Brad Clark, Ward 9 (upper Stoney Creek) councillor, said he doubted this inquiry would be that expensive. He moved pursuing the inquiry, which Sam Merulla (Ward 4, east end) seconded. 

"I cannot understate the importance of this opportunity to rebuild public trust," Clark said.

Now a judge will be appointed as commissioner. That judge will set up an office, staff and equipment, and hire more lawyers. The city pays for all of it.

'Writing a blank cheque'

That gave some councillors pause. Lloyd Ferguson of Ward 12 (Ancaster) said the city can't control the scope of the inquiry. Like Brenda Johnson (Ward 11, Glanbrook), he preferred the auditor general option.

With a judicial investigation, "you're really writing a blank cheque," he said.

"Eleven million would be a big stick shock to our constituents."

Jason Farr (Ward 2, downtown) voted for a judicial inquiry. But not everyone will like it, he said. "People will be saying, 'Why are you spending $11 million? It's driver behaviour."

The public nature of the investigations was the big difference between the three options.

In the case of an auditor general or ombudsman investigation, the municipality can appoint someone to serve in that role. That person would review documents and interview witnesses. The report would be public, but the investigation itself would be private.

In all three options, the person can making findings of fact or misconduct, and recommend policy and protocol changes. With the auditor general and ombudsman options, the city sets the scope of the investigation. In a judicial inquiry, the commissioner can examine "any matter connected with the good governance of the municipality."

The city's director of audit services, Charles Brown, is also investigating.

Wants the province to apologize

The report first made news in February. That's when council revealed that a 2013 Tradewind Scientific report showed friction on some parts of the highway were below UK safety standards. The report had been put in a locked computer folder for the city's director of engineering services and left there.

It wasn't until a new director started the job that the report was discovered. That was in September 2018.

City staff hired another company to do a follow-up study, which found friction levels to be adequate. The city has also reduced the speed limit on the stretch from 90 km/h to 80, and has bumped up a plan to repave the road. The city has also put millions in improvements into the road since 2015.

Also on Wednesday, councillors asked the province for an apology for not sharing friction data from the stretch from 2007 to 2014.

Local NDP MPPs Sandy Shaw (Hamilton West-Ancaster-Dundas) and Paul Miller (Hamilton East-Stoney Creek) also stood at Queen's Park Wednesday and demanded a government apology.

How they voted

Who was in favour of a judicial review:

Maureen Wilson (Ward 1), Nrinder Nann (3), Sam Merulla (4), Chad Collins (5), Tom Jackson (6), Esther Pauls (7), John-Paul Danko (8), Brad Clark (9), Maria Pearson (10), Arlene VanderBeek (13), Terry Whitehead (14), Judi Partridge (15), Mayor Fred Eisenberger.

Who was opposed:

Brenda Johnson (11), Lloyd Ferguson (12).