Commentary

Red Hill Lawsuit Questions

Ten years into the city's lawsuit against the Federal Government on the Red Hill Valley Parkway, we must ask whether and how this serves the public interest.

By Don McLean
Published November 25, 2013

The Red Hill Valley Parkway opened in 2007 after decades of controversy and protest. First proposed in 1954, this municipal expressway through the Red Hill River valley has faced strong opposition from the beginning, both locally from environmental, social justice and First Nations activists and, at various times, from the Provincial and Federal governments.

In 2004, the City of Hamilton initiated a lawsuit against the Federal Government, alleging that four cabinet ministers and more than 40 federal employees had conspired to knowingly harm Hamilton by intentionally delaying the Red Hill Parkway project by initiating an environmental assessment in 1998.

The City's $75 million lawsuit against the Federal Government is now into its tenth year, with court costs for the city currently well over $2 million. The lawsuit was approved in November 2004 by an 8-7 vote after an extensive presentation by the outside law firm representing the city in the lawsuit.

In March 2008, Council debated and voted 10-6 to continue the lawsuit - and also to stop releasing information about its cost to the public.

An article article published this week by CATCH has led Councillor Brian McHattie to call for the city to withdraw from the lawsuit [PDF].

Unanswered Questions

The following questions appear to need answers.

  1. The city is represented in the case by an outside legal firm (Gowlings).

    1. Who within the city is responsible for overseeing the actions of this outside firm, reviewing the results of their actions and reporting this to council?
  2. The court decision on the preliminary motions was issued two years ago (December 1, 2011). It dismisses and is very critical of the city's motions.

    1. What internal city review of this judgment took place and what were its conclusions? Were these communicated to council?
  3. The preliminary motions examined in the December 1 2011 judgment occupied nine court days and took 3.5 years to reach a conclusion. They thus represent a very extensive utilization of legal resources by the city's outside counsel resulting in a substantial cost. The federal side sought a cost award. Three months elapsed after the decision dismissing the city's preliminary motions was delivered on December 1 2011 and prior to the subsequent court decision on a cost award on February 29 2012.

    1. Was city council informed of the costs incurred by the city in the 3.5 years of preliminary motions and advised on what additional costs might be imposed by the court in a cost award?
  4. The cost award judgment was delivered on February 29 2012. It forced the city to pay $309,844.59 requested by the federal lawyers (p19). It states: "In the result, all of the orders sought by the City were rejected. This offer was substantially more generous to the City than the result." (p14) It determined that a fair calculation of these costs was $446,662.00 (p12). It noted that the city's outside counsel had not revealed its costs, but agreed with the federal lawyers that that amount was very likely higher than what the federal lawyers had spent. (p19)

    The judge's decision was very damning: "Counsel for the City has acted as if it had a client with inexhaustible resources to finance endless experimental litigation and that it could conduct litigation against the federal government with impunity." (p17)

    The judge also quoted and fully endorsed the view expressed by the federal lawyers: "This motion proved to be entirely unnecessary. Over 3-1/2 years were spent in preparation and argument. It consumed 11 court days ostensibly to determine what portions of a 183-paragraph decision by Justice Dawson of the Federal Court were res judicata, based on a hearing in the Federal Court which itself required only 5 days. The City was entirely unsuccessful. No findings were made by the court that the defendants had not already conceded or admitted in their statement of defence filed in 2006. In the end, 3-1/2 years of legal work by both parties, which could have been spent advancing the action, were entirely wasted." (p18)

    1. When did the outside legal counsel report the cost award decision to the city? If this decision was not reported to council, why not? Is this not a fundamental responsibility of the outside counsel?

    2. This is an unexpected expenditure of over $300,000. When was the cost award decision reported to city council? Why was it not made public by the city?

    3. Who reviewed this decision on behalf of the city and what were their conclusions? When were those conclusions reported to council?

  5. The cost award decision was very critical of the fairness of the substance of the city's preliminary motion: "The City was asking for something in this motion that is contrary to fundamental fairness and the system of justice in this country." (p16) This is damning to the reputation of the City of Hamilton.

    1. Who authorized outside counsel to proceed in the manner that it did? Was city council informed that this was the legal strategy? And if they were, how did council countenance such a strategy?
  6. The decision also set out in some detail the hurdle that must be crossed for the city to succeed in its overall case. It appears to be a very high bar. City decision makers, including city councillors, need to be aware of this challenge. The judge stated: "To prove misfeasance against a public official a plaintiff must prove that the public official deliberately engaged in unlawful conduct in the exercise of public functions, he/she was aware that the conduct was unlawful and likely to injure the plaintiff, the public official's tortuous conduct was the legal cause the plaintiff's injuries and the injuries suffered are compensable in law." (p14-15)

    The judge cited a precedent case to further explain the hurdle: "At its core, the tort targets officials who act dishonestly or in bad faith. As Iacobucci J. said in Odhavji, public officials who deliberately engage in conduct that they know to be inconsistent with the obligations of their office risk liability for the tort. Conversely, public officials who honestly believe their acts are lawful, and do not intend to cause harm or know that harm would likely result from their actions, fall outside the ambit of misfeasance in public office. In this way, the required mental element achieves a balance between curbing unlawful, dishonest behavior and enabling public officials to do their jobs free from claims by those adversely affected by their decisions." (p15)

    1. Were city councillors aware that this is the challenge faced by the city in its lawsuit? If not, why not? If so, do they honestly believe this has a reasonable chance of success?

    2. For over nine years, more than 40 civil servants have lived under the cloud of these accusations by the city and its councillors. Do councillors feel this is fair and reasonable treatment for government employees? How would they feel if the shoe were on the other foot and it was city staff facing these very serious allegations?

  7. The city's costs now appear to exceed $2 million. The federal side has also incurred substantial costs (nearly $700,000 confirmed four years ago). These costs are all being borne by taxpayers. All of the city's costs are borne by local taxpayers and a portion of the federal costs are also borne by taxpayers. If the city is successful in its lawsuit, further costs will be imposed on Canadian taxpayers. All of the cost of this lawsuit will be borne by taxpayers.

    1. How does this serve the public interest?

Don McLean is chair of Friends of Red Hill Valley and coordinator of Citizens at City Hall, a volunteer group that has monitored city affairs since 2004 and distributes free news articles via email. The group can be contacted at info@hamiltoncatch.org.

24 Comments

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By Mal (anonymous) | Posted November 25, 2013 at 12:11:30

Kudos to CATCH, but it's a telling comment on how clued-in City Hall is that it's getting legal briefings ex post facto from a blog.

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By Mal (anonymous) | Posted November 25, 2013 at 12:33:07 in reply to Comment 95148

To be clear: No knock on CATCH, RTH, or anyone else who is providing informed perspective and analysis on civic issues. No knock on blogs or any other social media. No knock on elected officials or public employees engaging same, or having a diverse media diet.

Like the author, I suppose I just find it a bit perplexing when issues of this magnitude escape our elected officials in the course of their working day. As the above notes, the court decision on the preliminary motions was issued two years ago. This considerable lapse raises the possibility that similar cases of poor counsel or misinformation may exist, undetected.

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By anonymous (anonymous) | Posted November 26, 2013 at 08:15:24 in reply to Comment 95151

Another example is "taxigate"

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By movedtohamilton (registered) | Posted November 25, 2013 at 14:54:57

I'm fairly new to Hamilton and not familiar with this issue, but it seems like another fustercluck. No doubt many of you are well aware of this 11-year saga.

But I admit that I'm having trouble following the layout of the story. I'm used to a typical Q&A, when the question is posed -- the Q -- and the answer is given -- the A.

If there's no answer, that is stated as well.

But I find the author's Q&A confusing, so I'm not following it very well. Is the Q above or below the A?

For example:

"The following questions appear to need answers.

The city is represented in the case by an outside legal firm (Gowlings)."

That's not a question.

Would some kind soul help parse this so I can follow it? Perhaps other Hamilton newbies need similar clarity?

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By speaking of "village idiot" (anonymous) | Posted November 25, 2013 at 15:31:29 in reply to Comment 95154

Go to Spec site and read its story last week, derived from CATCH. **The "a" you are seeing above is as in the alphabet, in which a comes before b, all the way to z--not a as in answer. New or not to town, the article here, and in CATCH, and in the Spec, is and are quite clear. And why you protesting village idiot anyway?

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By Jordan (registered) | Posted November 25, 2013 at 23:59:09 in reply to Comment 95155

That was just about the rudest way to answer his question. He just misunderstood the format of the article.

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By re J--nonsense (anonymous) | Posted November 26, 2013 at 15:23:09 in reply to Comment 95163

"Jordan" must have missed seeing 'movedto's.. own village idiot quote at end of its comment, about 'village idiot'. RTH is dealing with plenty pompous who dismiss even village idiots I guess. There was nothing 'rude' about the reply. RTH's formatting was probably where the problem came from, Jord. And the commenter had added the village idiot comment, not the responder, Jord.

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By movedtohamilton (registered) | Posted November 25, 2013 at 16:05:13

The collective "village idiots" appear to be at City Hall. $2million in court costs on this useless lawsuit, and CHPI is running out of money.

Comment edited by movedtohamilton on 2013-11-25 16:13:00

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By Noted (anonymous) | Posted November 25, 2013 at 16:34:34 in reply to Comment 95156

"On November 22, 2012, the Ministry of Municipal Affairs and Housing(MMAH) released the CHPI Guidelines and Service Agreement. The Service Manager Service Agreement attached as Appendix B to Report CS12031(a) must be signed by December 10, 2012 for municipalities to receive their first CHPI payment on January 1, 2013. An Investment Plan outlining how the CHPI funding allocation for the fiscal year of 2013-2014 must be submitted by February 15, 2013. Given these timelines, there is inadequate time to make plans for significant changes and while maintaining stability within the system."

http://www.hamilton.ca/NR/rdonlyres/6C9700B0-B3D1-462A-B4F1-5B8C15B027CB/0/Dec10EDRMS_n384782_v1_8_1__CS12031_a___Community_Homelessness_.pdf


Which Minister of Municipal Affairs and Housing developed those guidelines?

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By Keith (anonymous) | Posted November 25, 2013 at 19:54:21

The context for this has changed now that I read this article on The Spec. I think this changes my perspective on the situation:

"What's incontestable, however, is Hamilton was shafted by the Liberal government of the day, which wrongly imposed an environmental assessment on the parkway, adding some $36 million to the $225-million project.

A judicial review and appeal have ruled the assessment should not have been applied. Council wants the feds to acknowledge that with some form of compensation, preferably hard cash."

And the city has success before too:
"As Collins has previously pointed out, Hamilton has successfully put the legal screws to the feds before.

When the old city took the Harbour Commissioners to court for failing to channel proper profits into the city's coffers, Ottawa coughed up $6.2 million via an out-of-court settlement, recompense which became seed money for the Waterfront Trust."

via The Spec (http://www.thespec.com/opinion-story/4234944-dreschel-mchattie-s-red-hill-bid-bound-to-fail/)

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By More Context (anonymous) | Posted November 26, 2013 at 08:40:00 in reply to Comment 95158

Don't forget Dreschel has his own ax to grind, he's been a Red Hill cheerleader from day one and he'd love Lloyd to be the next mayor. Notice he doesn't quote the Judge-- "Counsel for the City has acted as if it had a client with inexhaustible resources to finance endless experimental litigation and that it could conduct litigation against the federal government with impunity." Ouch.

As for the Waterfront Trust, there's a big difference between suing because the government isn't following its own rules for sharing revenues and suing because you think the government owes you punitive damages for trying to follow its own rules.

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By J (registered) | Posted November 26, 2013 at 09:28:30 in reply to Comment 95170

not to mention arguing conspiracy and intentional infliction of economic harm. Dreschel is so slippery. Manages to make an 8-7 vote a political sure thing - and what's the argument, that we've spent $2 million might as well spend another $200,000 on trial?

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By anonymous (anonymous) | Posted November 26, 2013 at 08:17:36 in reply to Comment 95158

..and the Waterfront Trust has been putting the screws to the taxpayer ever since...under the leadership of Chad Collins

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By redmike (registered) | Posted November 26, 2013 at 20:16:22 in reply to Comment 95169

evidence? proof? facts?

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By redsonja (anonymous) | Posted November 27, 2013 at 09:44:24 in reply to Comment 95182

Who needs evidence when you've got innuendo?

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By anonymous (anonymous) | Posted November 27, 2013 at 11:52:02 in reply to Comment 95189

Definition of Innuendo http://www.you-can-be-funny.com/ItalianJokes.html Scroll down a bit

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By WRCU2 (registered) - website | Posted November 26, 2013 at 08:11:03

"To achieve great things, two things are needed: A plan, and not quite enough time." -Leonard Bernstein

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By movedtohamilton (registered) | Posted November 26, 2013 at 22:44:00

A sidebar. My "village idiot" sentence is simply a part of my profile (optional signature) and it shows up on my posts. Many of us have them. Mine is not directed at anyone in particular.

I assume the anonymous person who directly replied to my post is unaware of the ability to create a profile since he/she chooses to remain completely...anonymous.

Comment edited by movedtohamilton on 2013-11-26 22:44:51

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By you too, 'moved to here'? (anonymous) | Posted November 27, 2013 at 16:13:53

Listen, if you don't like RTH's anonyms posting system, complain to RTH/Ryan. Thousands & millions of Hamiltonians don't have the problem with it that you and a guy at Mohawk [whose name we're not allowed to mention] have. Yes, yes, you're not actually prjdcd against village idiots--but you are separating yourself from other citizens.

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By Ryan (registered) - website | Posted November 27, 2013 at 17:13:15 in reply to Comment 95197

Oh, for crying out loud. Your first comment was rude and condescending, period. Your follow-up comment dug deeper into your indefensible trench, and this comment is plain ridiculous. Either have the decency to apologise or at least the sense to leave the matter alone instead of making it worse.

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By I think he meant (anonymous) | Posted November 27, 2013 at 17:19:52 in reply to Comment 95200

Gee RTH, I think the 'commenter' meant that the village idiot(s) even in Hamilton cannot be excluded. I re-read what I think RTH means is the 'first comment.' Given that the newcomer sort of sluffed away the import of the actual Red Hill article--did he try to follow it, really?--I for one thought the original 'comment' was pretty close to right on. And what about the anonms? Does RTH want it or not?

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By movedtohamilton (registered) | Posted November 27, 2013 at 22:21:26

On a good day I'm of average intelligence. So no, I did not slough it off. Rather, I read the article and was struck by how poorly the public interest of Hamilton has been served. As I wrote in my initial post, the lawsuit is a "fustercluck"...one to be added to the list. There seems to be so little oversight by the appropriate parties. Just one example of when the "client" is not being attentive:

"The judge's decision was very damning: "Counsel for the City has acted as if it had a client with inexhaustible resources to finance endless experimental litigation and that it could conduct litigation against the federal government with impunity."

What opinion on success/failure was provided to Council by The City of Hamilton Legal Services Division prior to the commencement of legal action in 2004? Did Council give more weight to a pitch by outside counsel than their own in-house counsel?

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By Getting it at Both ends (anonymous) | Posted December 04, 2013 at 17:23:14

It is galling that Mr.Mclean, who is the author of tens of millions of costs to the City in his Quixotic fight against the Red Hill Creek Expressway, has the temerity to even voice an opinion. He should be personally responsible for the $75,000,000.00.

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By highwater (registered) | Posted December 04, 2013 at 17:32:08 in reply to Comment 95528

Hi Larry!

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