November 24/04 Report
7 pm (actual start 7:03 pm)
Adjourned 11:25 pm

David Estrin's Presentation - Legal action against Federal Government - under Public Work Report - re: Item #12

(Mr. Estrin's power point presentation can be found on the City of Hamilton's website at:
http://www.hamilton.ca/public-works/capital-planning/
red-hill-valley-program/Red-Hill-Valley-Project/Whats-New/
Project-Updates/2004/City-Tort-Presentation.pdf)

Members of Council :

• Mayor Larry DiIANNI (present) in 7:03 pm
• Ward # 1 Brian M cHattie (present) in 6:40 pm, out 10:14 pm; in 10:16 pm
• Ward # 2 Bob Bratina (present) in 7:33 pm, out 10:10 pm, in 10:13 pm
• Ward # 3 Bernie MORELLI (present) in 7:45 pm, out 9:50, in 9:55 pm
• Ward # 4 Sam MERULLA (present) in 6:56 pm, out 8:06 pm; in 8:18pm, out 9:44 pm; in ? pm, out 10:15 pm; in 10:24, out 10:27 pm; 10:31
• Ward # 5 Chad COLLINS (present) in 6:56 pm, out 8:05 pm; in 8:10 pm, out 9:50 pm; 9:55 pm
• Ward # 6 Tom JACKSON (present) in 6:49 pm, out 8:25 pm; in 8:30 pm, out 8:55 pm; in 9:03 pm, out 9:07; in 9:08 pm, out 9:50 pm; in 9:55 pm
• Ward # 7 Bill KELLY (present) in 6:33 pm, out 8:10 pm
• Ward # 8 Terry WHITEHEAD (present) in 6:55 pm, out 7:15 pm; in 7:20 pm, out 8:57 pm; in 9:05 pm, out 10:45 pm; came back in, but not sure what time ?
• Ward # 9 Phil BRUCKLER (present) in 6:49 pm, out 10:30 pm; in 10:35 pm
• Ward #10 Maria PEARSON (present) in 6:49 pm
• Ward #11 David L. MITCHELL (present) in 6:53 pm, out 9:20 pm; in 9:30 pm, out 9:43 pm; in 9:50 pm, out ?; in 10:27 pm
• Ward #12 Murray FERGUSON (present) in 6:55 pm, out 8:05 pm; in 8:15 pm, out 9:35 pm; in 9:44 pm, out 10:24; came back in, but not sure what time?
• Ward #13 Art SAMSON (present) in 6:55 pm
• Ward #14 Dave BRADEN (present) in 7:37 pm
• Ward #15 Margaret McCARTHY (present) in 6:41 pm, out 8:55 pm; in 9:00 pm, out 10:40 pm; 10:47 pm

Members of Staff

• Peter Barkwell - City Solicitor
• Kevin Christenson - City Clerk
• Lee Ann Coveyduck - General Manager, Planning and Development
• Neil Everson - Executive Director, Economic Development
• Mary Gallagher - (Co-ordinator) Council, Committee of the Whole and Budgets, City Clerk's Office
• John Gosgnach - Manager, Corporate Communications
• Catherine Graham - General Manager, Human Resources
• Salter Hayden - Deputy Clerk, Manager - Licensing and Election Services
• Don Hull - Director of Transit
• Chief Jim Kay - General Manager, Emergency Services / Fire Chief
• Chris Murray - Acting Director - Red Hill Valley Project
• Glen Peace - City Manager
• Joe-Anne Priel - General Manager, Public Health and Community Services
• Joe Rinaldo - General Manager, Finance and Corporate Services
• Doug Rose -Manager, Standards and Licensing
• Scott Stewart - (Acting) General Manager, Public Works

Other Speakers

• David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project

Members of the Media present :

• Doug Cameron, K-Lite FM
• Karen Cumming, CH
• Maggie Hughes - independent
• Nicole MacIntyre - Hamilton Spectator (I think)
• Ken Mann, CHML
• Kevin Werner, Brabant
• Cable 14

6. Committee Reports

6.1 Public Works, Infrastructure and Environment Committee, Report 04-020, November 15, 2004
(http://www.hamilton.ca/Clerk/agendas-minutes-reports/
Public-Works/2004/Nov15/Rep04-020.pdf)

12. Red Hill Valley Project - Legal actions - (LS04021) - (City Wide) (13.1)

Mayor DiIanni : "Councillor McCarthy, I understand you have an amendment to Item 12 and then we'll deal with the Red Hill Valley Issues right now. Councillor McCarthy let's table your amendment first." (I don't think the Mayor meant "Table" in the rules of order sense of the word, I think he just meant that Councillor McCarthy present it now.)

McCarthy : "You want to hear the amendment?"

Mayor DiIanni : "Let's hear the amendment."

McCarthy : "Okay. It's been moved by myself, Mr. Mayor; and seconded by Councillor Jackson:

'that, given the financial over runs of the Red Hill Valley Project, subsection (f) of Item 12 of the Public Works, Infrastructure and Environment Committee Report 04-020 be amended by changing the word "annually" to "monthly" after the words "no less than" - so it will read - as follows: That the City Solicitor provide reports to the Public Works, Infrastructure and Environment Committee, no less than monthly , setting out the projected annual budget for legal services for the Red Hill Valley Project, and providing a summary of the monies expended for legal services in the preceding year.'

And, Mr. Mayor, I'm not asking for the company to come in and justify what they've, what they're charging us, because they don't want to pay for that. I just want our City Solicitor to come in and tell us, monthly -"

Mayor DiIanni : "I understand."

McCarthy : " - what they're charging us."

Mayor DiIanni : "That's pretty clear. And, who's seconding your amendment? Councillor Jackson?"

McCarthy : "Councillor Jackson."

Mayor DiIanni : "So, that's on the floor. I understand that Councillor Collins has an amendment. Let's get them all on the floor. Then, what I'd like to do is ask Mr. Estrin to make a presentation for us and then we'll deal with these items."

Collins : "Mr. Mayor, mine would be a part (h) and part (i); and they're seconded by Councillor Merulla -

(h) is: 'that the City's Purchasing Policy # 4, regarding the Policy of Delegated Authority Spending Limits for City Staff be reconsidered and be referred to the next Corporate Services Committee for review.' And part

(i) is: 'that the information from the May 19 th , 2004 Corporate Services Committee' - where we discussed this same issue - 'be forwarded to all Members of City Council and be placed on the Agenda for Reconsideration.'"

Mayor DiIanni : "Thank you. So, the part (h) is that the spending authority be referred to the Committee; and part (i), again - "

Collins : "That the information from the same debate that we had in May be referred to the Committee - that information's already been compiled. We debated it. There were, I believe, Motions put at that time and some won and some lost, tonight. I think it's best we reconsider those."

Mayor DiIanni : "All right; very good. So, we'll consider all of those amendments - in fact, the whole Report. But, I'd like to call on Mr. Barkwell to come forward and give us some information and then listen to Mr. Estrin, as well, if we need to do that."

Peter Barkwell - City Solicitor : "Through you, Mr. Mayor. At the Committee, it was requested that Mr. Estrin prepare a modified version of his presentation - essentially deleting legal advice, but providing the chronology in a form that could be presented in the public. And that's been done. I understand, however, that probably because it came close to me, the PowerPoint has failed us this evening. And, but Mr. Estrin will present that to you. Mr. Estrin also, I think, has some information for you regarding the retainer of the Consultant with respect to this project. And, then my recommendation would be that following that, Council will want to consider going in camera to hear the balance of the legal advice. And, then I understand there maybe more advice that Council may wish to have repeated in public having heard it in camera."

Mayor DiIanni : "Thank you. Mr. Estrin, the floor is yours."

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : "Good evening. I wonder if the Clerk could hand out copies of the coloured PowerPoint presentation - that one. And, this can be given out to the public, as well. As you heard, there were technical difficulties this evening in terms of the PowerPoint. So, we're going to have to look at paper, as opposed to having flashing slides in front of us. What I'm discussing at this point, is the recommendation contained in the City Solicitor's report" ( ) "with respect to proceeding further with the suit against the Government of Canada Officials with respect to the Tort of Abuse of Public Office for the purpose of recovering monies and damages to the City. So, these PowerPoints, you'll have to go from left to right. So, the Tort - Abuse of Public Office - # 1. The previous JR Rulings is 2 nd . Let's, I'm not going to read them all. But, I'm going to take you through the highlights."

"The Tort is described in the 1 st slide and it really involves, among other things, wilful blindness to a lack of authority on the part of government officials with either an intent to harm a person or a city, which can be demonstrated that they had actual intent or they had reckless indifference - or wilful blindness - to the harm that could result from their lack of statutory authority or their wilful blindness to their lack of statutory authority." Now that's the Tort."

"As we go through this, you can ask yourself, what is the evidence that we have. Well, first of all, we have the Ruling of the Federal Court of Canada and the Federal Court of Appeal that, in fact, the Federal Government did act illegally. And that is, of course, a very helpful foundation for any suit."

"The Federal Court findings of federal illegality are non-disputable in the City Damages Action for Abuse of Public Office on the basis of what's called issue estoppel - the Federal Government is estopped" (precluded) "from denying that they acted illegally. That wonderful situation, from a legal perspective, together with the fact that we have uniquely here, hundreds of internal Federal memos and e-mails that we acquired during the course of the Judicial Review showing Federal intentions to stop the" (Red Hill Creek) "Expressway, will greatly assist the City in establishing Federal liability. This is really a unique case, in many respects, because we have the previous ruling, which is binding. And secondly, we have all the evidence in advance of ever going to court."

"What are the damages we're seeking to recover? Well, the higher construction costs that range between $30 and $50 million. They haven't been finally determined - and, of course, they won't be until we really finish the Project. But, they're in that range. The City has lost substantial amount of tax assessment from thousands of frozen serviced residential lots on the top of the escarpment. You are still trying to recover about $2 million of the $2.5 million that you spent on taking the Judicial Review. We were successful in getting $500, 000 from the Federal Government in Costs, previously. And that was an extraordinarily high amount of Costs in a Judicial Review Recovery. But, we're still out of pocket on that a couple million. And, if we win, we're enti - the way the court treats the Tort of Abuse of Public Office is to say, 'Well, we should punish those who engaged in this by awarding Punitive and Exemplary Damages.' And, that's a normal thing. And, we're claiming $25 million."

"The next thing you need to know is that this Tort necessarily has to be, is that committed by individuals, not Her Majesty. That is why numerous people - Ministers, Civil Servants - were named in the Statement of Claim. However - and they were named because they are, their names all show up on these internal memos and e-mails that we have. And I know, from their records, that they were involved. Now, Her Majesty, the Crown in Canada, is vicariously liable for the Torts of Her civil servants. So, in the end result, the Crown will defend; and the Crown will pay damages; and individuals will not. And, discussions are currently in progress to possibly drop individual civil servants from the lawsuit, if the Crown agrees to accept any liability that is found and pay all damages. They approached us, already, to initiate that conversation."

"What are the, what - just to go back a bit in history, here, what were the Federal objectives in using the CEAA, the Canadian Environmental Assessment Act?" (http://laws.justice.gc.ca/en/C-15.2/) "Well, ordinarily, one would have expected they would have used it to look at the fisheries issues and the moving of the pipe-line issue that were involved in completing the Expressway. These are issues of Federal jurisdiction. But rather, what happened here, and what was illegal, was that they tried to re-examine the need for the Expressway, and alternative routes for the Expressway after 60% had been completed. Moreover, this was the first time in Canadian history since the Act came in that a Federally-appointed Review Panel - all members appointed by Ottawa - were selected to review some kind of a provincial or municipal project. There were absolutely no provincial or municipal members, or even consultation about members from the Province or from the Municipality. And, of course, the real concern was that after this CEAA process happened, the Federal Cabinet could block the Expressway completion."

"Now, why was the Region, then Region of Hamilton-Wentworth, most incensed about what was going on, then - and this all came out in the lawsuit? Well, the fact is, over a 10-year period, beginning in 1977 and finishing up about 1988, the need for the Expressway, and alternative routes that could possibly be considered were, were considered in a very extensive environmental assessment process. Indeed, the Red Hill Creek Expressway was the first municipal project to undergo a hearing under the Ontario Environmental Assessment Act." (http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/90e18_e.htm) "And, need and alternatives were the main issues. And at that hearing, the opponents were, in fact, funded by the Region and represented by lawyers and they called numerous experts. And after the Board approved the Project, the opponents took further appeals to Provincial Cabinet and to Divisional Court, which were both unsuccessful."

"So after, and as a lead up to, to the actual hearing in 1985 - this as a bit of information: In 1977, the Mountain East-West and North-South [Corridor] Study was carried out. That was the Region's environmental assessment; 15 possible alternative routes were considered; 16 factors were used to rank them, including the natural environment, air quality, scenic resources, impact on recreation. In 1979, both the then City and the then Region recommended the current Expressway route as the preferred alternative."

"Then, the Region asked the Province to apply the Environmental Assessment Act to the Project and it went through a, and the Region had its Environmental Assessment circulated to various government agencies and the public for comments."

"Environment Canada was one of the government agencies that was circulated. If you look in the middle left slide on the second page under the heading, 'Expressway Environmental Assessment Process,' Environment Canada February 25, 1983 what was its response to participate in the review of the Region's environmental assessment? Quote: '" As it is not anticipated that the project as proposed will involve federal lands, federal funds or federal initiative, the Department of Environment elects not to participate in the assessment review. "' Quote, unquote. So, they had a clear opportunity back in 1983 to comment and to take part in the subsequent hearing. They chose not to."

"The process continued. The Province reviewed the Region's environmental assessment; concluded it met the requirements of the Environmental Assessment Act."

"The hearing started up in 1984; went through 1985; 99 days of hearing. Save the Valley was actively opposed. The Niagara Escarpment Commission was opposed and appeared with lawyers and presented evidence. Environment Canada chose not to attend."

"And so, 99 days of hearing, over 8 months, 500 exhibits and many expert witnesses on a 2 to 1 decision, the Joint Board approved the route, concluding that it could 'be constructed in such a manner that the physical qualities and environment of the Valley can be greatly enhanced to the benefit of the'" (hear laughter from some in gallery) "'citizens of Hamilton.' That was what they said. There was a dissent. The Region, but they did say this, which I think is important, 'The Region, based on the evidence adduced, did explore all reasonable alternatives as required by the Ontario EAA.'" (hear laughter from some in gallery)

"Well, that was the approval. Then, it went to cabinet; it rejected in the appeal. And, it went to the court, that rejected it. So, what happened between 1990 and 1997. Well, in 1990, construction began. And, it began on the north-south portion, because that was the portion that was to be the first portion. Three major bridges and an interchange were built in the beginning of 19 - in the last part of 1990 at a cost of $20 million. In December, 1990, the NDP, they pulled the funding for the north-south. The east-west construction continued. In 1995, the Conservative Government committed to restoring the funding. In 1996-97, the Region proposed more environmentally sensitive design for the north-south, including what we're now doing, which is relocating Red Hill Creek into a natural channel - that is, not burying it under the road, as had been approved in 1985. And, the Region obtained a Declaration Order" (hear someone clapping in the gallery) "to make environmentally friendly design changes."

Mayor DiIanni : "Sorry, ya, thank you." (not sure what happened. But, clapped then ceased.)

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : "So, when in 1998 it was evident that the Region was about to resume construction, things began to happen at the federal level under the headings of 'Federal Illegality - Federal Officials Misuse Environmental Assessment.' Despite the fact that Environment Canada had refused to participate before, in 1998 Environment Canada determined to use the CEAA process to stop Expressway completion."

"How this happened was, that moving the Creek required Fisheries Act (http://laws.justice.gc.ca/en/F-14/)approval, that triggered CEAA, which took effect in 1995. Opponents lobbied the Federal Ministers and Federal Officials to use CEAA to re-examine need and alternatives - not just the impact on fish."

"Now the purpose - what you have to understand here, is the purpose of CEAA is to look at things from a planning perspective, to ensure need and alternatives are considered in the planning stages of a project, before irrevocable decisions are made. Now, Federal Officials clearly knew in 1998 that the Expressway was well-past the planning stage and largely complete and that the Region had made many irrevocable decisions. However, Federal Officials, influenced by Ministers and civil servants who personally opposed the Expressway, ignored facts such as a) it was too late to apply a planning process to a 60% complete project and b) the north-south component was not a separate project, it was always an integral part of one Hamilton ring road from Highway 403 to the QEW."

"They also knew that CEAA, as a Federal Statute, can't be used to question Need and Alternatives of a provincial or municipal project. Those are matters that are provincial or municipal concern. Yet, the only objective of Federal Officials in invoking CEAA was to go back and examine those basic issues, which had already been extensively examined."

"In the bottom slide, on the right-hand slide, Federal Officials blatantly ignored a central component feature of CEAA - a precondition: timing of a Federal Environmental Assessment. [CEAA - Timing of Assessment - 11 (1)] It says, 'Where an environmental assessment of a project is required, the federal authority . shall ensure that the environmental assessment is conducted as early as is practicable in the planning stages of the project and before irrevocable decisions are made ..' Well, let's turn the page."

"CEAA took effect in 1995. In 1997, there had been a Federal Court decision which made clear that CEAA didn't apply to projects for which before 1995, when it took effect, irrevocable decisions had been made. And, of course, there had been many irrevocable decisions prior to 1995. And, Federal Officials knew this."

"What were these? Well, by 1995, as I said, 60% had been completed, including 37% of the north-south portion; 3 new bridges in the Valley; $125 million had been spent on construction - including $52 million for the north-south; 24 expropriations had occurred; 97 buildings demolished - including some on the north-south; $10 million had been spent on the north-south design; $46 million spent on land acquisition."

"1, 500 acres of land in Stoney Creek had been serviced and approved for residential development, but frozen by the OMB" (Ontario Municipal Board - http://www.omb.gov.on.ca/) "until the expressway was built, and other areas limited in number of units; sewers servicing and streets built on top of the Mountain - all premised on the Expressway; and a couple hundred of acres of City-owned business parklands had been rezoned and serviced. Everybody knew that. In fact, the Federal Government knew that."

"Here's a Senior Environment Canada official with environmental assessment experience. He got assigned to come down and have a look at this and what does he say? He said, it would, in effect be abuse. He said - and this is a memo he wrote to his fellow people up in Ottawa: 'A Panel Review is basically not on here, primarily because there was really only one federal issue of . substance,' - meaning the fish - the majority 'the real issues are provincial and have been the subject of provincial hearings, approvals etc. Little would likely be gained through a Panel.'"

"'At this point' - and this is continuing the memo ' it appears that a lot of the opposition is a last gasp, a last appeal to an apparent court of last resort (i.e. CEAA). . the fisheries issues are relatively minor. The project,' he said ' can result in rehabilitation of the Creek and may very well result in an overall improvement of fish resources in the valley.'"

"Well, that went to, that's one of the things that happened, that was one of the pieces of evidence that went before the Federal Court in the period of 1999 and 2001. Justice Dawson heard all this material, saw it all, and agreed with the Region on all the issues. She found CEAA should not apply to the Expressway."

"And, in fact, she quoted - and if you turn the page to the next, page 5, Justice Dawson up at the top, she quotes the Canadian Environmental Assessment Agency, ' whose logo extols "environmental assessment . Before you decide.' She said, that 'policy statement addresses environmental assessment . as a decision-making tool.' And, she goes on to quote, the approach links considerations of 'need' . and 'purpose' . and 'alternatives' in the early stages of project planning, before irrevocable decisions are made."

She says, this policy statement illustrates the Agency - the Canadian Environmental Assess Agency's position that the purpose of EA 'is to force consideration of the need . alternatives . and alternative means . at early stages of project planning.'"

"And, then she quotes a Senior Federal Fisheries Official who also knew it was too late to apply CEAA. He wrote - before we ever went to court - 'Various proposals for the construction and completion of the Red Hill . have been under consideration since the late 1950s.' CEAA was 'promulgated January, 1995.' 'Applying a CEAA (promulgated in January 1995) environmental assessment on a project which has been planned for over 30 years can, unfortunately, never be considered to have been applied as early as practicable in the planning stages.' That was what he said."

"What did Justice Dawson say? She said, 'this represents, I find, DFO's' - Department of Fisheries and Oceans - 'made before he current controversy arouse, that for all practical purposes it was too late for any meaningful environmental assessment to be conducted of a project quote "planned for over 30 years" unquote. And 'is also recognition that the CEAA is premised upon application as early as practicable .'" (tape stopped, sorry. But, the end of the quote as shown on the hand out is: 'in the planning stages.')

". 'federal government lacks the legislative authority to implement any recommendations. . Based upon the facts that you have provided to me, it appears that public concern is over matters that are entirely provincial. In such a case, I would not recommend referral to public review.'"

"He continues, 'Where a public concern is over topics that fall within provincial jurisdiction (need for and alternatives to the project) the Act does not prohibit referral, but practical considerations do, to wit, the . responsible authority would likely be unable to implement the Panel's recommendations; and the Province may see the referral as an unjustified intrusion into its jurisdiction.'"

"What did Justice Dawson find? She agreed, 'Public concern focussed on the need for and alternatives to the project, areas of exclusive provincial jurisdiction which could not in my view support the exercise of federal authority referring the project to panel review.' She agreed with the Federal Government's own lawyers advice."

"What did Environment Canada know about Migratory Birds' concerns that they were trumpeting as a basis why they should be involved? Well, their own internal memo said, 'The site is not provincially significant with respect to breeding birds' nor is it ' of regional or provincial significance.' They went on to say, 'the science associated with predicting such .impacts . is extremely weak' and they were also acknowledged in this memo 'in a strictly legal perspective, Environment Canada's concerns about migratory bird habitat fall outside federal jurisdiction and might be challenged by the Province.' Well guess what, they were."

"Justice Dawson, what did she say? 'Given the main purpose of the Panel Review was stated to be to explore independently the genuine need for the project, I cannot find sufficient proximity between migratory bird concerns and establishing independently the need for the Expressway.. In the result, I find that the federal power in respect to migratory birds did not support the referral of the project to Panel Review.'"

"Now, let's go back and think about the politics here. In early 1998, when Environment Canada first had to comment on this, they said, oh well, we're not a responsible authority; we have no decision-making role; that's up to DFO." (Department of Fisheries and Oceans - http://www.dfo-mpo.gc.ca/home-accueil_e.htm) "This is a fish thing. And initially, DFO informed the region that a CEAA screening about fish is generally limited to fish. And in fact, when they published their first draft scoping for what they would be doing, a so-called screening, they said, we will not examine need and alternatives for the Expressway, because we know that that had already been considered."

"Well, what happened after December, 1998 when that appreciation of what DFO was not going to do became public. Well, there were letters from Ministers; there was all kinds of lobbying; and guess what? Environment Canada now claimed to be a responsible authority. Why? Well they said, there's a water gauge on this creek and we have to move that. And, that allows us to become a responsible authority and by the way, we won't just assess the effect of moving the water gauge, we think we can now assess the need for this Expressway thanks to the water gauge. They insisted that they had a right to be consulted in appointment of the Panel members and setting the Terms of Reference. They began to revise their internal conclusions about the birds which were pretty weak. And they, encouraged DFO, based on Environment Canada's new strength internally to refer to a panel review without completing the DFO screening."

"Now, after DFO did not include need and alternatives - I'm looking at the bottom slide on page 6. Environment Canada's Director of Environmental Assessments, wrote this internal memo. She said, well it might help to declare ourselves a responsible authority and insist more strongly on the issues we feel are important. And they then went on to develop what's called a 'draft unsolicited briefing note' which asserts Environment Canada may also be an RA" (responsible authority) " re decommissioning or moving of a water gauge on Red Hill Creek."

"But, what were the facts about that? And, they went on in March, 1999 - top of page 7 - to declare themselves an RA re: the Expressway. And, they were adamant, despite opposition from the Canadian Environmental Assessment Agency internally, that because of the water gauge, they're an RA for the whole project. But in fact, they suffered derision from federal colleagues. The Environment Canada Regional Director, 'suffered some derision from colleagues' for taking this position. And, the Environment Canada Legal Counsel, in a memo, claimed the position was based because on the fact that Environment Canada contributed some money to this water gauge. But, he was not sure how that position could be maintained that they were now entitled to review the whole need for the expressway."

"But, what were the facts, here? The top slide page 7. In fact this water gauge was on Regional land and was an aluminum shelter 'about the size of an outhouse.' For 20 years all costs of that gauge were paid by the Province, note Environment Canada. As of 1999, the cost became divided and Environment Canada was paying about $200 a month. The gauge was there under a Federal / Provincial agreement and nothing required Environment Canada to fund its relocation. And, in the later e-mails, they were even thinking about discontinuing it. And, the gauge had been moved previously in 1990 when the first Expressway work was done. And, that had been paid for by the Region. And, the screening at that time was applied just to the gauge and not the Expressway."

So I mean, it's quite evident what was going on, here. And, an artificial attempt to contrive an excuse for Environment Canada to get in the action and have a major influence. And then we have this interesting exercise where we had an Environment Canada engineer and a DFO biologist contrive expert opinions on migratory birds - I'm in the middle left-hand slide on page 7. Despite the fact that Environment Canada - Environment Canada made a push to get the Panel Review but DFO said, well look, your internal memo about birds is just too weak. There's too much uncertainty."

"So, what did they do? They got together and came up with some appropriate wording. And if you go to the middle slide on page 7, you see that they added that wording in bold and underlined, 'Environment Canada has concluded, therefore, that the project as described may have significant adverse environmental effects on migratory birds.' All they said before was that it would potentially have impacts on migratory bird habitat, not migratory birds. So, the engineer and the fish person got together and decided, well, we can say it will have effects on migratory birds."

"Yet, when I cross-examined these people, they admitted there was no evidence of additional scientific work done to support the conclusion that habitat changes would affect migratory birds and there was, therefore, no scientific basis for inclusion of these additional words. These words were written solely for the purpose of making a Federal Panel Review possible in the face of insufficient scientific evidence. And, they conceded, in cross-examination - the DFO did - that they made no independent assessment of that advice and lacked the expertise to do so."

"Now, there were certain things going on, internally, at Environment Canada that are relevant to know about. Certain employees of Environment Canada were centrally involved in developing the case for a full application of the Canadian Environmental Assessment Act and they had a conflict of interest, some of them. They were personally opposed to the Expressway and / or were actively involved in the Hamilton Naturalist Club and Friends of the Red Hill, which clearly opposed the Expressway."

"And, for example, we have a Secretary of the Environment Canada Environmental Assessment Coordinating Committee which played a key role in the Review Panel set up. He was also a member of the Hamilton Naturalist Club. Environment Canada recognized as early as January, 1996 this employee had a potential conflict and he apparently agreed to have no substantial involvement in the file."

"Nevertheless, here's what happened, that person a) arranged a 1997 meeting between members of the Hamilton Naturalist Club and Friends to convince DFO why CEAA should be used to consider need, re-consider need and alternatives. He continued to attend key internal Environment Canada meetings, discussing how Environment Canada should ensure a Panel Review. He was asked for his comments on key documents, including advice to the Minister, the draft Terms of Reference for the Review Panel, and he continued to receive numerous internal and external correspondence during the process."

"So, what are our conclusions here? A full EA had been carried out on need and alternatives 1977 to 1986 before the route was decided and Expressway construction began. The opponents had a full public hearing process in which Environment Canada declined to participate. When CEAA came into effect, 60% of the Expressway had been completed, $125 million spent on construction, including $52 million on the north-south. By 1998-1999, expressway opponents within Environment Canada, working with others, co-opted the Canadian Environmental Assessment project - process, to re-examine need and alternatives knowing it was too late for that and they lacked authority."

"Federal lawyers advised Environment Canada and DFO that they'd be acting without authority in applying CEAA. And, Federal Court agreed a) Federal officials acted beyond their statutory and constitutional authority and b) it was too late to apply environmental assessment."

"Those are all of the reasons, in summary, why you have a strong case."

QUESTIONS from MEMBERS of COUNCIL

6. Committee Reports

6.1 Public Works, Infrastructure and Environment Committee, Report 04-020, November 15, 200
(http://www.hamilton.ca/Clerk/agendas-minutes-reports/
Public-Works/2004/Nov15/Rep04-020.pdf )

12. Red Hill Valley Project - Legal actions - (LS04021) - (City Wide) (13.1)

Mayor DiIanni : "Okay. Thank you. So, you'll take some questions on this and then we'll move on to some others. And, I've got McHattie, Councillor McHattie, Councillor Bratina, and Councillor Whitehead."

McHattie : "Mr. Mayor, there's a number of things that I have questions on, here. Just been taking notes as we've been going through them. The 60% completion that's referred to prior to CEAA" ( http://laws.justice.gc.ca/en/C-15.2/) "being applied. It's my understanding that a majority of that was the east-west component of the road, which was independent - or could be perceived as being independent - of the north-south Expressway. That is, it could function as an east-west route as it has over the past number of years, now; east-west route across the top of the Mountain. So, the majority of that completion, I think, is clearly the east-west component of the Expressway."

"There were some bridges worked upon, worked on down in the north-south component. That bridge work was likely required in any case: King Street, Queenston in bad shape - just the age of those bridges. So, I question the 60% completion in terms of the way it's being interpreted here."

"The - in page 1, as well, the bottom right slide refers to the Provincial assessment. That was a Consolidated Hearing Board where we had 2 Ontario Municipal Board" ( OMB - http://www.omb.gov.on.ca/) "hearing officers and 1 Environmental Assessment Board (http://www.ert.gov.on.ca/ERT_new_index30.htm) hearing officer. So, it was a joint initiative. The environmental assessment was part of it. The final decision was a 2 to 1 decision. The 2 Ontario Municipal Board hearing officers who, perhaps today, as well, but certainly back in those days, were tended to be development oriented and a number of the decisions from the OMB even today come out in that way. So, they voted in favour of the Expressway. The Chair of the Environment Assessment Board - Michael Jeffries - voted against the Expressway going ahead and, in fact, had a 112-page dissenting opinion. So, it's important to note that that was a very interesting decision. And that also, it was 2 to 1. One could suggest that it was a stacked Hearing Board in the sense that the 2 OMB officers had the vote and the Environmental Assessment Board fellow, who was dealing with the environmental issues more clearly, and understood them more clearly voted against the Expressway."

"The - just bear with me in terms of the number of things, here I'm going to deal with. The trigger of the Canadian Environmental Assessment Act, as I understand, was the Fisheries Act." (http://laws.justice.gc.ca/en/F-14/) "That was based on migratory, both migratory fish and local fish being present in the Creek - mind you, I'll have to look at the date - there are about 24 species of fish, which is awfully high; very high for an urban creek. And, a number of those fish were migratory and they move from Lake Ontario, through Hamilton Harbour, up into the Creek to spawn and back again. So, it's a tremendously significant Creek from a fisheries perspective."

"The other important thing to note about the Fisheries Act interest and the permit that was required for the Fisheries Act, this is the only project in Canada where a good 8 km of road - sorry, 8 km of creek, are being re-located as a result of this project using a method know as the Natural Stream Channel Design . That's a method that's only been tried on very small, little sections of creek in the past- 500 metres, perhaps 1 km. It's never been tried on an 8 km section before - particularly a significant creek, such as the Red Hill Creek which is the 2 nd largest creek going into Hamilton Harbour behind Spencer Creek, and the number of fish species are significant, as well. So the trigger with the Fisheries Act was significant and that's one of the reasons why the Federal Government was interested in this project."

"The - I'll move right ahead to the comments about the Migratory Birds. The, it's suggested in the slides here that this was contrived information, contrived expert opinion on Migratory Bird impacts. Well, when the NDP Government was in place and they were interested in trying to find an alternative route to the Expressway - and in fact did find an alternative route, which the environmental groups in Hamilton actually agreed to, Region of Hamilton-Wentworth Council decided not agree to it. It was very close to an election time with the Provincial Government. They decided they'd roll their dice with a possible Conservative Government. In fact, they got their wish, as with Mr. Harris coming in. But the point being, here, is that the NDP Government provided funding through David Crombie and actually went through the Conservation authority for the Hamilton Naturalist Club to conduct a biological inventory of the Red Hill Valley."

"It was a very comprehensive inventory, employing professional biologists to do that work. A key component of that work was a spring and fall Migratory Bird survey of the Valley. The spring survey, in particular showed that the Valley was tremendously significant from a Migratory Bird perspective. It's a north-south trending valley, as we know. Birds coming across Lake Ontario see the Valley - and what were 47,000 trees, once upon a time - and settled right down in there and refuel on their way further north to their breeding grounds; some of them staying in the Valley, as well and breeding in the Valley. So, all that is very well-documented."

"Obviously, that information was shared with Environment Canada, Canadian Wildlife Service. And, the slide below that - bottom left, on page 7 - suggests there was no evidence of additional scientific work done to support the conclusion that Migratory Birds were an issue in the Valley and that's, in fact, just frankly untrue. So, I wanted to point that out. And, I've got that report and I can bring that in and show it to whomever's at Council. We likely have it here in our files, our Red Hill Creek Valley files with the Project."

"The internal events at Environment Canada, which suggests that some members of Environment Canada were members of the Hamilton Naturalist Club, Friends of Red Hill Valley. This is a key point because the, this harkens back to this whole case which has to prove that there's been a conspiracy on the part of the Federal Government employees and on the part of Sheila Copps. That's also talked about in the lawsuit. But, this talks about the employees in particular - on page 7. So, we got to prove that these people were acting in bad faith and their acting, putting together, really a conspiracy against the City of Hamilton to stop the road. So, what we're talking about here are professional biologists, professional engineers, professional planners and perhaps others who we're alleging - and the number of about 50 of these folks we've got listed in the case, as you know - we're alleging that they all acted in bad faith and acted in an unprofessional manner, but acted in a conspiratorial way to try and stop this road. That is, in my mind, is going to be very difficult to prove."

"And, the other factor with that, I'll just mention, is that in order to take this case forward to the courts, we're talking about hundreds of thousands of dollars of City of Hamilton money to do this. We won the case. We - the City of Hamilton - won the case back in, a number of - was that in 2001, that the Act did not apply and the Project, of course, has gone ahead since that time. I'm clearly against the Project, but I've accepted that decision; I've accepted being part of this City Council; and I've moved ahead with, in good faith, myself, to not be, not try and stop the road anymore. So, you know, that's something that was difficult, obviously, for me to do. But, this is a City of Hamilton issue and I respect the ability of the City to build the Expressway at this point in time. However, having won that case with the Federal Government, being awarded costs as part of that, I have a real hard time with us spending hundreds of thousands of dollars of more tax-payers money to try and prove that there was a conspiracy amongst the staff at Environment Canada and Department of Fisheries and Oceans. So, I'm going to, I may have additional comments as we go through this again, Mr. Mayor."

"But, to me, this is a very dicey situation and I think it speaks to a lot of things and really a keynote decision in the history of this particular council. We're in a situation where there's a real question as to the control that's being exercised on this council by outside law firms. And, we know about the case where the individual was paid to work on the aboriginal, work with the aboriginal groups, you know, at $275, 000 of tax-payers money. Nobody seems to know whether that was approved or not, or who approved it; none of the councillors that I've heard of - I wasn't on Council at the time - none of the councillors that I'm aware of quoted in the Spectator, were aware of that. So, this is a very key question, how much control do we give up on this council to outside law firms - of course the associated, money associated with that, the City of Hamilton money, you know, over $4 million dollars to fight that CEAA case that we actually won - maybe, perhaps money well-spent, some would view here, at the City. We've won it; we've spent that money. We spent additional money since that time with Gowlings law firm. And, as I say, there's lots more money to be spent if we go ahead with this particular case."

"If we're actually considering going ahead with this, we've got to think of this very, very carefully and to also think about the long-term implications for a municipal government to take the Federal Government to court over a situation like this and the implications for the Canadian Environmental Assessment Act across the country. Environment Canada, Department of Fisheries and Oceans employees, in my mind, were doing their job to protect the environment - that's their job, as Environment Canada employees, as DFO employees. And, to move ahead with this kind of thing is going to put a real chill across the system, right across the country. This is not an Ontario issue; be mindful, this is a federal issue and if the City of Hamilton sues the Federal Government, or forces the Federal Government, really to, by setting up this court case, to settle out of court for $20 or $30 million which is, I suspect, is maybe a possibility, we really need to look at the ethics of using the Federal Government employees as a pawn, as pawns, to try and acquire this money. So, there's all kinds of ethical issues involved, here. People are watching this city council as we deliberate, here - I don't mean just on TV, tonight. I mean in a general sense, watching our direction. And, this will have implications right across the country. Other municipalities may also decide to go after the Federal Government and environmental protection across the country could be in jeopardy."

"So, those are all the points I have for now, Mr. Mayor. And, I think we need to seriously consider this before we go ahead." (hear applause from gallery) "I, so clearly will be voting against this. And, I would ask my council colleagues to think seriously about this and whether we need to, whether we're going to be controlled by an outside law firm. Thank you."

Mayor DiIanni : "Thank you. I should have indicated that it would be best if we just asked questions of the lawyer, since he's here, then we'll get into the debate and the presentations. I didn't want to interrupt the Councillor through that, but if we could just do that, I think that would help. But, I need to do this, before I recognize Councillor Bratina and then Whitehead."

Vote to waive the rules for Council meeting to go beyond 9:00 pm (Samson / Pearson - CARRIED)

Mayor DiIanni : "Moved by Councillor Samson; seconded by Councillor Pearson that we waive the rules to go beyond 9:00 o'clock, since it's now 9:32 pm. Okay, are you guys okay with that? All in favour of that?" (hear councillors say carried) "That's carried. Thank you. Councillor Bratina."

Bratina : "I would echo the views and the facts expressed by Councillor McHattie. And, I won't go back all over them, except for one - which is that I, too, was a supporter of maintaining the Valley and against the Expressway. And, I stood there and watched the SWAT team go in and the construction crews go in and start to demolish the Valley. I didn't see any of the proponents of this, at that moment, there. There were tears in my eyes and I was very upset. And, I put that behind me."

"One of my initiatives - of 6 initiatives - for the Budget is to have an aggressive marketing campaign for the City of Hamilton. This is a bad news story. You can't spin this into a good news story. This is going to turn Hamilton back into a Plastimet city - as city of lawsuits and a City that, frankly, I can't be proud of - When we're saying that Sheila Copps demonstrates intent to harm, I don't believe that."

"But, you want me to ask questions, so I will ask questions. Mr. Estrin, these sound like pretty awful people. In a court of law, when you conduct this case, what would be their personal motive? What would they get out of this as their intent to commit these crimes? Would that come up in the presentation of this evidence?" (hear Mr. Estrin, off microphone say something) "Ya, what's in it - you commit a crime, you want to kill somebody, you want to steal money, what was their crime that they wished to commit?"

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : "First of all, no one's suggesting that they committed a crime. This is not a criminal matter. This is a suit for compensation that damages that the City has suffered. And, the matter that needs to be dealt with is, were they, did they know? Or, were they reckless and indifferent to whether they knew that what they were doing was beyond the authority of federal officials. The answer clearly is they knew - many of them knew. We have it in the court records; we have it in the quotations I gave you."

"And, secondly, were they careless, or negligent or reckless with respect to what harm that may cause the City? And, the fact is, because they knew that they were acting illegally, it was quite clear that what, that the result of applying the Canadian Environmental Assessment Act was to reexamine need and alternatives. That's what they wanted. That's what the Environment Canada officials clearly wanted in all of the thousands of pages of memos they wanted to stop this expressway. And, that may be a worthy environmental objective if we were back in 1977. Hey, you know, a lot of people might have said, you know, maybe we should think about that. But, the fact was, that this City and this Region had spent, as I said, hundreds of millions of dollars at that point. And, homes had been expropriated and properties and taxes imposed and development charges; and things were being held up. So they, the question was, were they careless and reckless with respect to the harm that they were causing the general public. And, in my view, the evidence is, yes. That's where we would be going."

Bratina : "Well, I believe, through you, Mr. Mayor that it's not hundreds of millions, but tens of millions. But, anyway, how did you get the memos? You said, we got the memos. Were these private, restricted access memos, such as we send to each other, here at City Hall, understanding that no one outside would be able to access this information? Can you speak to how we, how you got these memos?"

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : "They were all ordered to be produced by the Federal Court of Canada."

Bratina : "So -"

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : "Court Ordered."

Bratina : "So, the Court can order private and confidential -"

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : " - not private and confidential, they were internal memos."

Bratina : "Okay, well that's the question I'm asking, you. And, final question for tonight, is, is our, is your meter running as you make this presentation? Are we paying you" (hear laughing from gallery) "as you speak?"

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : "Well, normally bill for when I come here to give advice. And, this is the City, yes."

Bratina : "And, Mr. Mayor, could we find out how much this presentation has cost, because I could have read this, myself off an e-mail, thank you." (hear applause from gallery)

Mayor DiIanni : "Well, I think we asked Mr. Estrin to be here. And so, we shouldn't blame him for being here, since we asked that, right. Well, we'll get a bill on that and we'll share that. Councillor Whitehead." (hear someone say something in gallery) "Councillor Whitehead." (hear some laughing from gallery)

Whitehead : "Thank you, Mr. Mayor. I find the language, Mr. Estrin, that he used is provocative, insulting, abusive. I mean, I understand your role, in representing the City. But, I had the fortune of being on both sides of this issue. In fact, I was at the Federal, with the Federal Government meeting with the lawyers and trying to resolve and ensure and let them know clearly that the Minister, Sheila Copps, at the time, was not going to be supporting an appeal, period."

"The Federal Government decided that they're going to go forward with an appeal - not for political reasons, but because of the legal advice they received was that to go forward with an appeal. So, I guess my question to you is, if you believe that there's an abuse of power - and I think that's what you're suing for, why would the Federal Government appeal the decision?"

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : (hear Mr. Estrin say off-microphone: "Well, they didn't like it.")

Whitehead : "Would that further not, would that further, would that not further, would that further agitate or sorry, further - what's the word I'm looking for - further enhance the injury to the City by appealing it?"

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : "No, not at all. I mean, they had a perfect right to appeal and try and over-turn it. No one can say they did anything wrong in that. That's not abuse of process, or abuse of public office. So, it had nothing to do with what happened in court, it was everything that happened before we had to take them to court."

Whitehead : "Now, there's 1,500 - when I checked with the Ministry of the Environment, one of the things they looked at is - because they look at public concern in respect to applying the Act. My understanding that they had received hundreds and hundreds of letters from the City of Hamilton asking for the Act to be applied - or thousands - and in fact, conversely, they didn't receive many letters saying do not apply the Act. Would that not be an instrument in the decision as the application of this particular Act?"

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : "Well, it certainly indicated that lots of people were writing them and had a point of view. But, they also knew, based on their own internal memos, they also knew based - thank you - based on their own internal analysis and legal advice that, that's very interesting they got all these letters, but it was none of their constitutional or legal business, particularly constitutional. They were advised by their own lawyers that issues which people were centrally writing about - about need and alternatives - were matters of provincial jurisdiction. And, I quoted in the PowerPoint presentation one of those Federal Justice Department lawyer's notes."

Whitehead : "Well, you also presented something that gives one side of the issue and is a bit out of context because there's a lot more information as you're aware of. And, I've seen the other side and some of the rulings and I don't see the quotes and that in here. So, you've picked and choose what you, could make your case - which is your job. And, I'm not criticizing you for that. But, would you acknowledge that there's a lot more information on the other side that mitigates what you put forward to us today?"

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : "Not at all. This is really the highlights of a very long judgement. Actually, it was very interesting, Councillor McHattie was going through a bunch of points. And, one understands why he wants to make those points about things like, you know, that: this was a separate project, there wasn't really that much built, etc., etc. I can assure Members of Council that all these points that people who are opposed to the Expressway on Council would bring out, were strenuously brought out in the court proceedings ." (taped stopped, sorry) ". and they made up all these arguments. And, there was lots of evidence that the Judge had to consider. And, she found the facts as she found them. So no, I'm not bringing you just one side, I'm bringing you facts as were contained in the Federal Government's own records; and facts that were agreed with by the judge."

Whitehead : "So why, if you feel you have such a strong case that the lawyers for the Federal Government believe that a settlement isn't required in this case?" (someone says something off microphone, and not audible in another microphone that happens to be on) "Well, I've been told by the AG's" (Attorney General) "office at the federal level that they were are not prepared to settle this case."

Mayor DiIanni : "Well, I think that's contrary to the information that our lawyers have - Mr. Barkwell - "

Peter Barkwell - City Solicitor : "I think at this point we're getting into the type of discussion which I would recommend should only be had in camera."

(hear "oh's" from some people in gallery)

Whitehead : "Okay."

Mayor DiIanni : "So, save that part of it."

Whitehead : "Okay, I will. I think the last question I have is, the concern that when we start suing other levels of government, because at the end of the day, it's the same tax-payer - whether it's the federal level, provincial level" (hear applause from some in gallery) "or municipal level. And, my concern is, that the precedents it set, sets; and my other concern right now is what position does it put this municipality relative to potential, you know, positions or decisions that we made and does that open up the gateway for opportunities for this community, to say, hey, the City of Hamilton can sue another level of government because of a position that they believed for many reasons - and I think there's many other people would suggest that there was strong reasons for them to take the position that they did. And, that's the information I saw. I saw a lot of information that said that they should apply the Environmental Assessment Act. You're saying that they shouldn't and it was done in malice and with contempt and it was politically motivated. I think that's what I'm hearing in your presentation. I don't believe that's the case. I believe there's well-intentioned individuals that believed - and there was others that - I mean there's a huge, huge bureaucracy at the federal level, huge. And, there's going to be different views as there is around this table. But, at the end of the day, a decision was made - just like we do on the best advice we get from our staff, the best decision was made by the ministry at the time, based on the information they received from their staff and that it all funnels up to the Minister's office."

"So, what were saying, now, is that there was a decision that was made by the Federal Government with the purpose of, with malice - what's the word you used - abuse of power? Is that what we're suing for?" (hear David Estrin on someone else's open microphone say "Abuse of Public Office") "Abuse of Public Office. And, my concern is, if that's abuse of office, when they're taking a look at the best interest of the community, then what does that do in regards to the City of Hamilton - does that just open us up to any individual on any decision we make and say there's a potential Abuse of Office, so let's sue them and see what we can get out of the City of Hamilton? I'm just concerned what that does; what it opens up." (hear applause from some in gallery) "So, I'm asking you a question, does this not set a dangerous precedent for the City?

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : "This is a, no, this is a unique case. In my opinion, there is not going to be, very likely, in the future, such a clear case where we have documentary records from the defendant who we're suing that they knew, based on their own memos, which go right up from ordinary civil servants right up to heads of agencies, they knew that they were acting unconstitutionally - that this was a matter of provincial and municipal jurisdiction and they were reacting to pressure from citizens. And, they also knew that it would also cause harm to the City of Hamilton. That when you have, put those two facts together -" (hear someone from gallery say something) "- that then it's a unique situation which is not going to often be repeated."

"People don't bring lawsuits frivolously, or they ought not to. They can be slapped down with tremendous costs and I don't believe that this will start a flood-gates of litigation across Canada. This is a unique situation; a one-off. And, you've got very strong grounds which not many people will ever have again."

Whitehead : "Well, just to finish off, my biggest concern, Mr. Mayor, is that as politicians, we make the best decisions we can based on the information that our staff provides us. What this tells me is we're going to have to start questioning - we potentially might have to start asking, and second-guessing our staff, because if we don't, then we could be potentially in a position that somebody sues us for Abuse of Power. And, I think it sends a chill right through the political process and democracy. So, I'm really concerned about this." (hear applause from gallery)

Mayor DiIanni : "Thank you, Councillor. Councillor Braden."

Braden : "Thank you, Mr. Mayor. Two questions. One's rather simple, on page 4 middle section, left column, it says '200 acres of City owned business park lands rezoned and serviced.' Is it true that we have 200 acres of industrial land that's rezoned and serviced - that might be shovel-ready, but I'm asking that's shovel-ready? And, if so, where is it? Or, is it really not serviced?"

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : "Councillor, that was correct at the time, after the Expressway was approved by the joint board and we were buil, and the City and the Region were building it. I don't know what's happened since, but the fact is, that it did, it was approved and rezoned specifically for that and was awaiting the transportation access. Whether that's true today, or not, I don't know."

Braden : "It can await transportation. But, if it was serviced, then presumably the services are still now - unless we took the services out."

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : "Are you talking about services of the land?"

Braden : "Where are the services?"

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : "The services of the residential area are - "

Mayor DiIanni : "Let's get - "

Braden : "This is business land. It says, 'business park lands.'"

Mayor DiIanni : "All right, let's have Mr. Everson see if he can straighten that out."

Braden : "Okay."

Neil Everson - Executive Director, Economic Development : "Through you, Mr. Mayor, I believe that references the Mountain and Stone Church industrial parks."

Mayor DiIanni : "So, is that, would that statement be accurate, then?" (someone says something off microphone)

Braden : "It would. Does the Expressway have some relevance to that thing?"

Neil Everson - Executive Director, Economic Development : "At the time, that was, that was the premise on why those parks were built because it would have a north-south link to the QEW" (Queen Elizabeth Way)

Braden : "Okay. All right."

Mayor DiIanni : "Okay?"

Braden : "The other question is this. And it, first box, using the, this clause, 'reckless indifference or wilful blindness to [the] harm that can be foreseen to result.' Ten years from now, and I won't be here in years, in ten years from now, but I may want the services, sir, of your firm. Through you, Mr. Mayor, if the statistics for health are going to do west of that north-south expressway what we think they're going to do - and they're already one of the worst in Canada. But, they're going to get worse. And, one will just presume that the reason they're going to get worse, is that expressway. If we can prove that the health effects are probably due, in part, to that expressway, would your firm have a good chance of winning a case using that clause. Or, does that clause only work when you sue government? In other words, could a, could a person that gets sick" (hear applause from gallery) "could a person that gets sick use this thing it was 'reckless indifference' by Council or 'wilful blindness' by Council to the 'harm that can be foreseen to result' using the road exactly as intended and with the health effects that we've already professionally estimated?"

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : "The answer, Councillor, is that the Tort is not fulfilled by that condition alone. It's a 2-test Tort. And, the first branch of that is that you would know that you were acting, or had wilful blindness to acting illegally in building the road. The fact is, that you have full legal authority to build the road. Therefore, this Tort could never be applied to the City."

Braden : "Okay. But, by given the fact that we're building this road legally. And, this isn't Tort, this is just a court case - suing the City for damages, or health, or death, whatever they're suing for - is this clause a sort of a general clause, that if the City goes ahead wilfully and knowingly to reduce people's potential for good health, or contributing to their death. Is that something that 10 years from now people might be suing the City for, and if they do, do they have a chance - because we know that's going to happen." (hear some applause from gallery) "Right. We know that. So, I just want to know if we can say, because we acted in good faith, too bad. I want to know if that's a legal position that your - and you're a professional, and you're good at it."

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : "Well, the fact is, Councillor, that there'd be no scientific basis for that conclusion - and Mr. Murray can help you out, here, because the City and the Region did the studies to project what the impacts would be on health."

Braden : "Okay. Well, I'm not very satisfied, but I heard what the answer was. And, we can go on. I don't wish to re-debate this, Mr. Mayor. I'll bring this up later in the meeting."

Mayor DiIanni : "Thank you. Councillor - " (hear Councillor Whitehead on another person's open microphone request to speak, 'just on that point") "No, I've got some other speakers - " (another petition to speak on that point) "I've got some other speakers, can you wait. You'll get a second chance."

Whitehead : (his microphone is on, now) "But, it's on the point on harmful effects because I believe there was a report that talked about particulate matter that would impact the residents immediate to the Expressway and that is the reason why Sheila" (Copps) "wrote the letter to ask that the Environmental Assessment Act be applied in the first place. So, there is a report that we've commissioned that indicates that there will be a health effect. And, I want to see if that in fact is true."

Mayor DiIanni : "Mr. Murray."

Chris Murray - Acting Director, Red Hill Valley Project : "Through you, Mr. Mayor, there are several reports, actually, that relate to emission generation, as well as health effects and there was one report, in particular, where we looked at the future of this city with and without the Project. And, the conclusions of that report, based on rising congestion levels, is that if you didn't build the Project, your congestion levels would increase and traffic would move slower. Hence, there'd be more emissions. So, certainly there's a concern about Red Hill Valley and the people that live adjacent to it. But, I think you have to be equally concerned about those that live on Highway 20 and other roads in this community. We certainly do have a health effects report. It was written by Cantox (Company website: http://www.cantoxenvironmental.com; report concerning effects of particulate matter on City website - not sure if this is the one to which Mr. Murray refers: http://www.hamilton.ca/public-works/
capital-planning/red-hill-valley-program/reports/Final-Reports/
Health/Overview-Summary.pdf) "and the conclusions are fairly clear."

Mayor DiIanni : "Thank you. Councillor Samson."

Samson : "Thank you, Mr. Mayor. You have to realize, I'm speaking at this - until October 1 st , I was a citizen and I followed this debate very peripherally. I live at the west end. I live in Dundas. And, I was interested in it. But, you know, it certainly wasn't something that occupied much of my time. If I had been on Council at the time, I would have voted against the Red Hill Expressway. I really, I guess, I wouldn't typify myself as an environmentalist. But, I guess I would say that I'm certainly someone who's aware of the environment."

"I listened to all the, what Councillor McHattie was saying - and he gets into all the scientific and all that kind of thing. I guess I like to put it down very simply. I've heard around here that we're interested in partnerships with other governments and for the life of me, I can't understand how we can turn around on one hand and sue a government and then turn around on the other side and say, will you help us out?" I mean, it doesn't make sense." (hear applause from the gallery) "I don't understand that. I also looked at the cost of the legal fees and they are a lot. I won't go into how much they are. But, they're a lot. I know that there's a lot of frustration. There's frustration on this Council. You've sat through this. And some of you have sat through it for probably 10 or 15 years, because you were on the old Dundas coun - or the old Hamilton Council or the old Stoney Creek Council. You've gone through this. There's frustration. There's frustration on both sides. Let's put that all behind us and not turn around and be suing the Federal Government. I mean, to me it's, it's absolutely ludicrous. I don't know how I would look a federal politician in the eye if I was part of this. It makes no sense to me, at all. And, there's obviously no way that I'm going to be voting for this. Thank you." (hear applause from gallery)

Mayor DiIanni : "Thank you. Councillor Merulla."

Merulla : "Thank you, Mr. Mayor. Let me start off by first letting - everyone knows that I support the Expressway. But, I have to say that it's time to move forward. And, this community's been divided way too long. I can assure you that I've felt the wrath of that division. And, it's time to focus in on our similarities rather than our differences. And, people acting in a manner that's not conduci - that's conducive to what they believe is in the best interest of this community - whether it be Sheila Copps or anyone else, for that matter - just because I'm in opposition to that, doesn't necessarily mean they're wrong and I'm right. It just simply means that they were doing what they felt was in the best interest of this community and - but most disturbing, I guess is the fact that suing residents." (I think this is the word he used, but not sure) "I just can't support it. I'm not going to support it. And, I think we should just put this behind us. Move forward and let it go. Thank you, Mr. Mayor." (hear applause from gallery)

Mayor DiIanni : "Okay. I - " (someone shouts out something from gallery) "I don't see any other speakers." (hear someone audibly shout from gallery "I'll speak, Larry" followed by laughing from some in gallery) "The, so on this issue, and then we're going to move on to just the presentation for information on the Consultant issue as well."

Amendment to Item #12 (f) of Red Hill Valley Project - Legal actions Public Works, Infrastructure and Environment Committee, Report 04-020, November 15, 2004
(http://www.hamilton.ca/Clerk/agendas-minutes-reports/
Public-Works/2004/Nov15/Rep04-020.pdf)

"(f) That the City Solicitor provide reports to the Public Works Infrastructure and Environment Committee, no less than annually, setting out the projected annual budget for legal services for the Red Hill Valley Project, and providing a summary of the monies expended for legal services in the preceding year . "

(McCarthy / Jackson - CARRIED)

"On #12, I've got some amendments that we're going to deal with first. And, the first one is the amendment by Councillor McCarthy on the (f) part of 12, which essentially asks for no later than monthly reports on the expenditure - that's the gist of the amendment. That was moved by yourself and - "

McCarthy : "seconded by Councillor Jackson."

Mayor DiIanni : " - seconded by Councillor Jackson. All in - " (Councillor Braden asks something off microphone to Mayor DiIanni) "on that amendment?" (again, Councillor Braden speaks off microphone) "Ya, go ahead."

Braden : "You want to restrict this to just, at this point, legal fees and the cost legal service. And, if you do, that's fine. But I just, I want to bring that to our attention. Or, do we want to look at the whole project?"

McCarthy : "The report states legal actions. So, that's why I wanted to amend it to monthly. But, obviously when any report comes forward - or you can present your own report on anything to do with the Red Hill Creek Expressway. But, the report that came forward to us dealt specifically with legal action. So, - "

Braden : "That's fine, Mr. Mayor. I just wanted to qualify."

Mayor DiIanni : "Yep, that's fair."

Braden : "Yep."

Mayor DiIanni : "I recall that there were some Councillors that were asking for some information that may be required, may require an in camera discussion. I'll certainly take a motion for that, if people want to do that." (some speaking by councillors off microphone) "Okay. Councillor Ferguson."

Ferguson : "I'm a little slow off the mark, Mr. Mayor. Could I ask Mr. Estrin one - or, two questions? The middle square on page 1," (4 th slide, on right-hand of page) "'Discussions underway to possibly drop individuals if Crown agrees to accept their liability & pay all damages' Is that the norm?"

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : (starts with microphone off, but can hear him speak in another microphone that is on) "Well, in this kind of an action, the Federal Crown is - " (someone in gallery says "microphone." Mr. Estrin turns on his microphone and resumes speaking) " - sorry, if liability were to be found against individuals, the Federal Government would pay because they're what's called vicariously liable for the Torts of their servants. So, individuals are not being, are not going to pay in this case."

"What we are discussing with them is actually having them drop out of the lawsuit at the beginning if, on the basis that the Federal Government will make it clear on the record that had they been kept in the lawsuit and liability was found, the Feds would pay. So, the answer to your question is normally, in this kind of lawsuit, the Federal Government as a government pays, not the individuals. I don't know if that helps you or not."

Ferguson : "Ya. Further, Mr. Mayor. Could that be an amendment to the Motion that if they were deemed to be acting under direction of their superiors - which they probably were - then the employer - i.e. the Federal Government - would be the sole defendant?"

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : "You don't need to amend anything. That's the way the law is, right now."

Ferguson : "So, by and large, the individuals being sued is a non-issue?"

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : "That's right, it is not an issue. They will be defended at the cost of the Government of Canada. Their legal fees will be picked up by the Government of Canada. And, any damages will be paid by the Government of Canada."

Ferguson : "So, why is it necessary to even mention them in the lawsuit."

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : "Because this is a Tort that can't be committed by a government. It can be only committed by individuals."

Ferguson : "Acting on behalf of the government." (Mr. Estrin says something, but couldn't hear it) "So, the individual issue is a non-issue."

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : "Correct. It is, in - on the ground, it's a non-issue."

Ferguson : "And, for another opinion, how winnable is this?"

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : "How which?"

Ferguson : "How winnable?"

David Estrin - Lawyer, Retained from Gowlings (Gowling, Lafleur, Henderson LLP) - for Red Hill Valley Project : "In my opinion, it's got excellent probabilities of success. And, you can see why, based on the factual record that you have in front of you."

Mayor DiIanni : "All right. I don't see any Motion to move in camera. So, I'm going to proceed with the votes, then. All right? So, on the amendment to (f) All in favour?" (hear councillors say carried) "That's carried."

Amendment to Item #12 - by Councillor Collins Red Hill Valley Project - Legal actions Public Works, Infrastructure and Environment Committee, Report 04-020, November 15, 2004
(http://www.hamilton.ca/Clerk/agendas-minutes-reports/
Public-Works/2004/Nov15/Rep04-020.pdf)

(Collins / Merulla - CARRIED)

Mayor DiIanni : "And, the second amendment is from Councillor Collins and it's in 2 parts - spending without spending authority be referred to the appropriate committee for review and the second part was around some information, as well. That's been. Who was that seconded by?" (someone says Merulla) "Councillor Merulla. All in favour of that?" (hear councillors say carried) "That's carried."

On the whole of Item #12 - Red Hill Valley Project - Legal actions Public Works, Infrastructure and Environment Committee, Report 04-020, November 15, 2004
(http://www.hamilton.ca/Clerk/agendas-minutes-reports/
Public-Works/2004/Nov15/Rep04-020.pdf)

Mayor DiIanni : "Then, on the whole Motion." (hear a glass clink and someone say something off microphone) "I can do that. I can, standing recorded vote. And - " (hear someone say something off microphone) "Well, now's the time to speak on (e) before I take the vote."

Braden : (starts speaking when microphone still off, so I missed that bit) ". it says we're going to get all the people participated in activities in contravention of the City's injunction order? I mean, I can read. But, does that mean we're going after the Natives and we're going after the Priest and we're going after me and we're going after the reporters. Or, are we being selective in who we're going after?"

Mayor DiIanni : "I think that's the other lawsuit and we'll talk about that in a few moments. But, I think Mr. Barkwell, if you want to answer that."

Peter Barkwell - City Solicitor : "The answer is that at the moment, the intention is that there are, I believe the number is between 6 and 8 individuals that we believe we would be justified in seeking citation for contempt of court."

Braden : "Sir, I can't hear, please. It's not your problem, but will you speak up?"

Peter Barkwell - City Solicitor : (speaks louder) "The answer is that at the moment - "

Mayor DiIanni : "Councillors

Peter Barkwell - City Solicitor : "- we have identified, I believe the number is between 6 and 8 individuals that we would believe we have the proper evidence and the proper law to seek citations for contempt of court. And, there's not an intention to cast a broader net than that, at this point in time."

Braden : "Mr. Mayor, really. When a person, who happens to be a person of the Church intentionally disobeys this order - walks down there, gives, you know, a warning and saying he's not doing it and gets a parade of his followers down there. And, the cops arrest him first and then let him go. Why don't - I mean, if we're going to teach him a lesson, why don't we go after him, because I'll vote to go after him. Right. He did it intentionally to make a statement. Right?"

Mayor DiIanni : "If we're going to talk about individuals, identify those, then we're going to go in camera."

Braden : "Oh, I don't mean to be nasty to that individual. I mean, I don't want, just because he's part of the Church, he ain't getting hit. Right. If he - "

Mayor DiIanni : "Again, again. I'm going to stop. Because, if we're going to identify individuals, then we need to move in camera. We really do."

Braden : "I don't need to go into camera to say why is it that all of the Natives - in particular the Clan Mothers aren't being - we're not going after. That's pretty simple. I mean, I'm not naming anybody. Why aren't we going after an identifiable group? That there was all this - and we hired Silverberg probably for this thing - and you're leaving them out. I'm suggesting, in the strongest sense, that you're picking on the easy guys and you won't pick on anybody your own size." (hear applause from gallery) "Why don't you do that?"

Mayor DiIanni : "Well, if the Councillor wants to make a Motion to expand the list, I guess we'll accept that as direction." (Braden speaks to Mayor off microphone) "All right. Point made. Do you want me to tick them off one by one?" (hear someone off microphone say "yes, please.") "All right. And, you want a standing recorded vote on each of them."

Mayor DiIanni : "(a)"

•  "That Council hereby ratify the actions taken by staff in commencing Court Action No. C-383/04 against the federal government, its Ministers and employees; "

Mayor DiIanni : "All right, standing recorded vote it has been asked for so on item (a) all in favour - " (called off by Deputy Clerk Salter Hayden)

In favour: Mayor Dianni, Pearson, Mitchell, Morelli, Jackson, Ferguson, Collins, Bruckler

Mayor DiIanni : "Against" (hear applause from gallery) (called of by Deputy Clerk Salter Hayden)

Against: Whitehead, Samson, Merulla, McHattie, McCarthy, Bratina, Braden

Mayor DiIanni : "Thank you. That carries - (b) all in favour?" (hear some councillors say carried) "Standing recorded vote -" (someone says it will be the same as in (a)) "Will it be the same? All right, so can we assume that it's the same" (someone says something off camera) "Okay, standing recorded vote has been asked for. All in favour, please stand?"

•  "That the City Solicitor be instructed to continue with Court Action C-383/04, as against the federal government, its Ministers and employees; "

In favour: Mayor DiIanni, Pearson, Mitchell, Morelli, Jackson, Ferguson, Collins, Bruckler

Mayor DiIanni : "Against."

Against: Whitehead, Samson, Merulla, McHattie, McCarthy, Bratina, Braden

Mayor DiIanni : "That carries. (c ) - all in favour?" (hear some councillors say carried) "Now, this is an offer to settle out of court. All in favour of that?" (hear some councillors say carried) "Against" (hear some councillors say something) "So, there are 4 against - the same number against" (same breakdown, as for (b)) "(d) all in favour - standing recorded vote for this, please. All in favour of (d)? " (hear some councillors say carried) "Please stand if you're in favour."

•  "That the City commence a Court Action against all identifiable individuals who, during the summer of 2004, participated in activities in contravention of the City's Injunction Order, seeking to have them held in contempt of Court; "

In favour: Mayor DiIanni, Pearson, Mitchell, Morelli, Jackson, Ferguson, Collins, Bruckler

Mayor DiIanni : "That carries. (e) all in favour?" (hear people talking) "Oh, sorry - against. I'm sorry. I just assume it carries, because it's the same number. So, I apologize."

Against: Whitehead, Samson, Merulla, McHattie, McCarthy, Bratina, Braden

Mayor DiIanni : "That carries. (e) All in favour, please stand."

(e) "That for the purposes of continuing to represent the interests of the City on the Red Hill Valley Project the City Solicitor be authorized to continue the ongoing retainer of Gowlings, with all legal fees and disbursements to be reviewed and approved by the City Solicitor, and charged to Public Works' Capital account no. 52425-4060087009."

In favour: Mayor DiIanni, Pearson, Mitchell, Morelli, Jackson, Ferguson, Collins, Bruckler

Mayor DiIanni : "Against."

Against: Whitehead, Samson, Merulla, McHattie, McCarthy, Bratina, Braden

Mayor DiIanni : "That carries. (f) as amended, all in favour please stand. Oh, we're okay with that. So, (f) - against (f)?" (none motioned against (f) as amended) "That carries. Now, is (g) germane? Can staff give me some direction on (g)."

(g) "That the staff power point presentation be presented to Council, while In Camera at its next meeting and an amended version of the presentation be released to the public."

Peter Barkwell - City Solicitor : "I believe (g) has now been accomplished - it was a direction from Committee to do this presentation here, tonight."

Mayor DiIanni : "So, we can move to receive (g). All in favour of that?" (hear councillors say carried) "That's carried. New section (h) All in favour of that?" (hear councillors say carried) "That's carried. And (i) all in favour of that?" (hear councillors say carried) "That's carried. Thank you very much."