The terms of the LRT settlement between the city and Rideau Transit Group are off-limits to the public. Why?
Lawyers explained to this newspaper that parties to a settlement can theoretically negotiate anything — including the public disclosure of its terms
Taylor Blewett, Ottawa Citizen
Published Feb 22, 2023 • Last updated 2 hours ago • 5 minute read
Ottawa residents are seeing the reset of a historically hostile relationship between the city and its LRT system Confederation Line contractor, Rideau Transit Group.
At least a dozen LRT inquiry recommendations will be implemented, according to the mayor’s office, thanks to a recent settlement that ended the legal battle that began with a notice of contract default the city issued to Rideau Transit Group (RTG) after the 2021 LRT derailments.
The consortium has come up with a “rigorous plan” to address the issues that led to the instances of train-track disconnect.
But what Ottawa residents won’t be told by officials is just what was given up to get to this point. Nor can they get eyes on the exact details of the wins the city walked away with when the two parties reached an agreement last month that resolved “several issues” between them.
It’s the nature of settlement confidentiality, a standard feature of negotiated ends to disputes — though not actually a requirement in law.
Lawyers explained to this newspaper that parties to a settlement can theoretically negotiate anything, including the public disclosure of its terms.
Practically, though, lawyer Stéphane Émard-Chabot — a former city councillor who practices municipal law — said he imagines non-confidentiality would have been a non-starter for RTG, for business reasons.
“Nobody in the private sector wants all their other clients to know what they’re willing to give up,” he said.
RTG referred questions from this newspaper about the confidentiality of the settlement to the city. RTG is a partnership of ACS Infrastructure Canada, EllisDon and SNC-Lavalin.
Even though she also suspects that insisting on the settlement terms being public would have killed the chance of arriving at one — or at least, resulted in an otherwise diminished deal — Champ & Associates lawyer Emilie Taman hopes that council members were given sufficient information to satisfy themselves that the value they were getting in exchange for confidentiality was worth it.
“It is a very ubiquitous, kind of standard expectation that an agreement would be confidential, but it’s not a requirement.”
Based on interviews this newspaper conducted with multiple council members, it appears there was no significant discussion of the possibility of making the settlement terms public during the five-hour in-camera legal briefing that preceded its finalization.
Ultimately, council voted unanimously to delegate authority to city staff to go ahead with executing a binding settlement, in line with the terms that had been presented during the closed meeting.
“I think everybody around the table, like all my colleagues, understands why these things remain confidential,” said Wilson Lo, the councillor for Barrhaven East. His own thinking was that the city and RTG probably wouldn’t have reached the settlement they did if its specifics were to be made public.
Capital ward Coun. Shawn Menard said he thinks that because council has been dealing with these legal matters in closed session at all times, “that’s what was just assumed, that those things would remain in-camera.”
Rideau-Vanier’s Coun. Stéphanie Plante said her main focus with the settlement was making sure that none of the recommendations from the LRT public inquiry would be compromised by how the city proceeded, and she got that reassurance. As for whether it matters that it’s private, in large part, she said it would — if it mattered to her constituents. She hadn’t received a word of correspondence on the matter.
The official secrecy around the specifics of the agreement hasn’t stopped some information about its contents from coming into public view.
Citing confidential sources, CBC Ottawa reported that the city agreed to retroactively pay a portion of the $65 million it withheld from RTG’s maintenance affiliate between September 2019 and the end of 2022. Among the concessions by RTG was a promise to hire about a dozen people by spring “to provide more service to the city,” CBC reported.
The settlement announcement, jointly released by the city and RTG on Jan. 27, says it advances “the goal of improved collaboration and partnership as recommended in the OLRT Public Inquiry Commission Report.” It also states RTG’s commitment to “a sustainable resolution” of the derailment-causing issues, for all Confederation Line vehicles, before the opening of the eastern LRT extension.
In a statement sent to this newspaper, the mayor’s office said the settlement implements “at least a dozen” of the recommendations that came out of the public inquiry into the Confederation Line project, “and is in the best interests of the residents of Ottawa and passengers of OC Transpo, both from a financial perspective and in terms of the future operations of the light rail system.”
As for whether it would be indicated at any point which of the commission’s recommendations this settlement makes good on, a statement from city solicitor David White offered nothing to suggest this information would materialize.
Among what White did note was that “the courts have recognized that confidentiality is a very important component of the settlement process and that, in fact, it is in the public interest to protect the confidential nature of settlements.
“In doing so, it encourages the settlement of disputes, rather than prolonging them through litigation.”
For Ottawa Transit Riders co-founder and board member Stuart MacKay, the implicit ask in this confidential agreement — “just trust us,” as he put it — is tough to swallow after the last four years.
The LRT inquiry revealed failures of transparency and accountability, MacKay notes, and what followed was lots of talk, including from the new council and interim city manager, about the importance of both and the need to restore public trust.
“But the first major LRT issue out of the gate this year is a deal with no details and tons of unanswered questions about the LRT going forward.”
To Riverside South-Findlay Creek Coun. Steve Desroches, the settlement is one “that puts the ugliness behind us,” in line with what Justice William Hourigan’s final report recommended the city and RTG try to do. Desroches chairs the city’s new LRT subcommittee, set up in the days that followed the release of the inquiry report to increase council attention to the light rail file.
“We’re going to do our best to bring into the public domain what we can and shed greater light on this project going forward,” said Desroches.
But when it comes to last month’s agreement, is it fair to criticize the confidentiality of the settlement?
Taman thinks so.
“We don’t know, we’ll probably never know, what extra value we got by virtue of this having been a confidential settlement,” she said. “Given the very legitimate public distrust in how the city has dealt with the LRT project from the beginning, I think it’s perfectly reasonable for residents to have a lot of questions and to feel unsatisfied by the lack of answers.”
https://ottawacitizen.com/news/local-new...t-group-are-off-limits-to-the-public-why
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