The anti-LRT councillors are on notice: if they attempt to kill this project in bad faith, Hamilton will be liable for the money Metrolinx has spent implementing it after Council committed to it.
By Nicholas Kevlahan
Published October 27, 2016
Hamilton City Council has agreed with Metrolinx to build the approved and fully funded light rail transit (LRT) system, and Council must continue to work with Metrolinx in good faith to accomplish that goal.
The October 25, 2016 General Issues Committee (GIC) meeting was really supposed to be a straightforward update by the City's LRT Office on the progress they've made working with Metrolinx to implement the City's LRT plan.
Seen from afar, this should have been uncontroversial: Council has steadfastly pursued LRT for the B-line through 45 votes, starting in 2008, and the Province agreed to the City's request for full capital funding of the direct costs.
However, a few Councillors have started having second thoughts - despite supporting LRT consistently in the past - and have been trying to figure out a way to kill the project, even though it is now being implemented.
This turned the meeting into a bizarre marathon of pointless questions, and it motivated seven anti-LRT and 19 pro-LRT residents and organizations to make presentations because it seemed the future of the project might be in doubt.
The one positive part of this meeting is that both the City Solicitor, Janice Atwood-Petrovski, and the City Integrity Commissioner, George Rust-d'Eye, made it crystal clear that this term of Council had agreed to implement the LRT project in collaboration with Metrolinx.
The decision has already been made - three times over! - and it would therefore require a two-thirds majority vote by Council to consider any motion that would have the effect of reversing this support or stopping or stalling the project.
This should have been absolutely clear to the anti-LRT Councillors, some of whom actually supported all of these motions. Below, I've highlighted the key passages from these motions (emphasis added):
Council voted to approve this on August 14, 2015.
That the City Manager create a light rail transit (LRT) office as a means to coordinate work with Metrolinx and engage the broader community in the building of an LRT in Hamilton.
Council voted to adopt this on February 10, 2016.
The Parties affirm their commitment to proceed expeditiously, diligently and in good faith and in a co-operative and collaborative manner to negotiate and enter into a definitive agreement or agreements to include, among other things, the matters set forth in this Memorandum of Agreement to facilitate and expedite the construction and completion of the Project.
Council voted to adopt this on June 22, 2016.
The purpose of this Real Estate Services Protocol is to set out the Services (as defined below) to be provided by the City to Metrolinx to acquire real property required for the Hamilton LRT and the roles and responsibilities of each of Metrolinx and the City pertaining to such Services. The City and Metrolinx will act collaboratively, cooperatively and in good faith with a view to ensuring acquisition of the real properties within the applicable delivery dates.
No reasonable person could read the text of these motions and agreements with Metrolinx and see anything other than a decision to work with Metrolinx to build the LRT project. In particular, Metrolinx itself could only assume that the City was fully committed to working with it to build LRT.
It is disingenuous in the extreme to try to claim, as Ward 8 Councillor Terry Whitehead did, that Council was simply trying to keep its options open and avoid making an actual decision. Both the Fostering The LRT and MOA motions say explicitly that the City is going to work with Metrolinx to build an LRT!
Anyone who has served on a board of directors or committee knows that, contrary to what Councillor Whitehead claimed, it is the final vote that counts, not the discussion leading up to it. It is very common for members to raise concerns, criticize the motion, and worry about implications. But ultimately they need to decide how to vote, and that is a decision they need to stand by.
Metrolinx has already spent serious money, based on these agreements and Council motions. Paul Johnson, director of the City's LRT Office, reported that Metrolinx has spent or committed $60-70 million.
George Rust-d'Eye also reminded Council of its legal responsibility to make decisions, and that Council has decided to work with Metrolinx to build LRT (entirely financed by the Province!). He warns that Council would be opening itself up to legal action by the Province if it goes back on its word:
The Council, and its predecessor Councils, have been elected to make decisions with respect to major municipal issues, and this Council has done so with respect to undertaking the development of the LRT to date, and, at least in the circumstances of the proposed motions, it would not be appropriate to suspend or cancel consideration and planning of the project without thorough consideration and legal advice with respect to the implications of doing so.
So it is now crystal clear that Council has already decided to build the LRT as proposed by Metrolinx and is obligated to continue to work in good faith with Metrolinx to accomplish this goal. This is no longer up for debate.
However, Council will still need to vote on two further issues to move the LRT project forward: the updated Environmental Assessment (EA) and the Master Agreement (MA). As the Spectator reported:
[City Manager Chris Murray] emphasized council has already committed "in good faith" to moving LRT ahead with prior votes, including an Aug. 14, 2015 decision to create an LRT implementation office to work on the updated project that calls for a line from McMaster University to the Queenston traffic circle. The city also signed a binding real estate protocol this fall.
But he added if council encounters a problem with the project or operating agreement that is "so significant that … we simply could not solve it, then I think that is where council would have to decide whether to keep going or not."
In other words, the objections that have been raised so far - "we don't need it", "let's spend the money on X instead", "it should be on Main street instead of King Street", "we shouldn't spend all this money downtown", "the project might go over budget", "some business owners are opposed", "the silent majority is against it", "construction will be disruptive" - are not acceptable.
I imagine some anti-LRT Councillors might try to delay or kill these motions, but they are now on notice. Everyone knows that they were publicly opposed to LRT before even seeing the EA and MA. It will be extremely difficult for them to meet the standard of "good faith criticism" now they've already revealed their hand.
The general public, and especially Metrolinx and the Province, will be watching very carefully how Council deals with these motions.
If there is any evidence of bad-faith dealing - i.e. criticisms aimed at stalling or killing the LRT project rather than improving it - Rust-d'Eye has made it clear that Council would be opening itself up to legal action by Metrolinx and the Province.
They might very well attempt to claim back at least the tens of millions of dollars that the Province has already committed to implementing Hamilton's LRT - money it has spent specifically because Hamilton asked them to!
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