LRT inquiry shouldn’t run into confidentiality roadblocks, lead lawyer says

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One of the lawyers leading the investigative work of the LRT inquiry doesn’t believe there will be barriers to getting details out of key witnesses who might be concerned about publicly disclosing sensitive information, even if those details are part of ongoing lawsuits.

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Christine Mainville said there might be one area where disclosure would be carefully guarded, but she otherwise expects an open flow of information.

“I don’t see any hurdles. We’ve already interviewed 90-plus people and the only thing that I would say is off limits is if there are confidential arbitrations,” Mainville said in an interview Thursday night after listening to citizens talk about their Ottawa LRT problems during the final public meeting before the hearings.

At the same time, “nobody cannot answer a question just because a particular subject matter may also be the subject of a confidential arbitration,” Mainville said.

“I don’t think it prevents us from getting at the facts.”

Mainville is one of three lead counsels for the inquiry commission. Kate McGrann and John Adair are the others. Their job is to identify and interview witnesses and collect documents as they piece together facts that will help inquiry commissioner Justice William Hourigan.

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The provincial government has asked the commission to look into the commercial and technical circumstances that led to Stage 1 LRT breakdowns and derailments.

The Dec. 16, 2021, cabinet order launching the LRT inquiry commission said the investigation should not interfere with ongoing legal proceedings.

Mainville suggested an active legal dispute between the City of Ottawa and Rideau Transit Group shouldn’t create barriers to gathering information since the litigation is public and those court documents are in the public domain. Those documents would also be accessible to the commission, if the lawyers are interested in them.

“Nothing is off-limits to us by virtue of litigation,” Mainville said.

Mainville said there was a process to protect “valid claims of confidentiality and privilege” and it was something the commission needed to respect under the Ontario Public Inquiries Act.

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Since the inquiry doesn’t lay blame or assign liability, witnesses should be open and frank about the workings of the LRT project.

“The goal is that everybody will be truthful because it can’t be held against them,” Mainville said.

RTG has previously argued against releasing documents in access-to-information requests because of the allegedly proprietary nature of the LRT system’s design and construction.

The city, too, has managed what information the public can see when it comes to the Stage 1 contract. The agreement is published online, but it’s partially redacted.

“There may be some documents aspects of which there’s a valid claim over, and that’s a process being worked through, but I don’t see that as preventing us from getting the answers we need to accomplish our mandate,” Mainville said.

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The inquiry commission has a uniquely compressed timeline to produce a report. The deadline for a final report is Aug. 30, but Ontario’s minister of transportation can extend it to Nov. 30.

So far, 40 witnesses have been identified to testify at the hearings over four weeks, starting June 13. The inquiry commission is willing to let the daily hearings go as late as 9 p.m. as lawyers and other participants try to get key evidence on the record within the schedule.

Mainville acknowledged that this inquiry would be “fast-paced.”

To gather information under the time constraints, commission lawyers have interviewed witnesses under oath in advance of the hearings, which is something not generally done in inquiries, Mainville said.

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“There are a lot of witnesses interviewed through the investigation, but their statements don’t then become evidence,” Mainville said. “But one way we’ve streamlined this process is we’ve conducted a number interviews under oath so that we can then use it as evidence.”

The witnesses asked to testify at the hearings are those who the commission lawyers believe are important. The commission lawyers might also agree that the public needs to hear from those witnesses.

The commission has collected one million documents and lawyers have identified 10,000 “relevant” documents for the inquiry.

The inquiry will include expert panels later in July to help explain technical and procurement best practices in the industry. That final advice from experts will inform any recommendations made by the commissioner in his final report.

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Assembling an independent panel of experts in areas of transit infrastructure and public-private partnerships can be a major challenge for an investigator looking for completely independent insights.

City auditors general, and even the city itself, have been challenged to find consultants who haven’t had RTG companies or the City of Ottawa as former clients. Plus, there are many firms that have worked directly on Ottawa’s LRT project.

The commission lawyers have seen how challenging it can be to round up independent experts.

“I’m not worried,” Mainville said. “We’ll get there.”

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