Mayor pushes for external investigation into why Red Hill report was lost

Hamilton mayor Fred Eisenberger says he expects unanimous council support for a motion to launch an independent, external investigation into why a 2013 report raising issues with the surface of the Red Hill Valley Parkway was buried.

As the fallout from the bombshell report continues, family members who lost loved ones on the deadly expressway are weighing their legal options. But a law professor says they face a tough road — proving the city was responsible in some way for the fatal crashes might even be impossible.

The push for an independent investigation also comes as a video has surfaced online showing the city's former top engineer telling councillors the 2013 tests showed "no concerns" with the parkway's asphalt.

In the statement released Friday afternoon the mayor said it was "difficult" for him and the other members of council to understand why the six-year-old report wasn't brought forward until this week.

"We will be insisting on an external, independent investigation into this matter," Eisenberger added during an interview.

It's not totally clear what the review would look like. The Eisenberger said the city's legal staff will be directed to provide some options.

Eisenberger said he has confidence in the city's own, independent auditor but explained an external investigation is needed to combat the perception the auditor is "part of the inside game."

Council has already launched an internal review aimed at making recommendations to improve internal processes around reports and other types of information.

But members of the public had been calling for a broader, external investigation following the announcement late Wednesday that the long-buried report stating the friction values on parts of the deadly parkway were below acceptable standards was kept from city council.

City staff have apologized to the public "for how this matter came to our attention." Councillors immediately voted to lower the speed limit to 80 km/h from 90, and to plan millions in safety upgrades including lighting, barriers and medians, and expediting asphalt upgrades.

On Friday Eisenberger said he and the other members of council "extend sincere sympathies to the families who have been affected and how the nature and timing of this information must be impacting them."

That outside investigation was supported by MPP for Flamborough-Glanbrook, Donna Skelly, who said the high number of fatalities and collisions on the road was a cause for concern when she was on city council.

Families struggling with report

Hamilton lawyer Rob Hooper has worked with some of those families and said he's been contacted by several people about the possibility of "individual lawsuits or the availability of a class action lawsuit."

Among those he's spoken with is Tandra Henderson, the mother of Jordyn Hastings who died with her friend Olivia Smosarski when their car crossed the median on the parkway in May 2015.

The lawyer pointed out many factors can play a role in a car crash and said the question now is whether there's some sort of commonality that points to the friction of the asphalt as a culprit.

Henderson wasn't up to speaking with a reporter Thursday. Hooper said her family is still trying to come to grips with the news.

"It's been a mystery and now they're sitting there going 'We were just starting to heal and now we find out that maybe our daughter's death was as a result of some product on the roadway," he explained.

"They cycle between really angry and really sad and a little bit confused on top of it, probably. They also have to try to deal with the fact the city knew since 2013 that there was a problem and now their child is dead."

Proving city responsibility for crashes 'almost impossible'

Standing between those families and a sense of justice is a large obstacle — somehow proving the city, not other factors such as speeding, weather and the actions of other drivers, caused the crash that killed their loved ones.

Allan Hutchinson is a distinguished research professor at York University's Osgoode Hall Law School. He said he sees two legal avenues families could use, but neither one ends with much hope of a settlement.

Trying to show that the city is responsible for individual accidents will not be easy. I would even say …almost impossible.- Allan Hutchinson, Osgoode Hall Law School

The first is through civil lawsuits that would argue the city or its actions led to the crash in some way.

"This is going to be a very tough row to hoe," he explained. "Trying to show that the city is responsible for individual accidents will not be easy. I would even say …almost impossible."

The other route is an administrative law approach that would challenge the city for not acting in a responsible manner or neglecting to properly inform itself about what was happening on the parkway.

"If that road was taken it's not clear to me there would be ... damages for individuals involved. But it would lead to monitoring and discipline for the city in a way," Hutchinson said.

Still, a class action lawsuit does come with some advantages including putting political pressure on the city to reach a settlement.

"They can all combine together and say the city contributed to increasing the chance of an accident," the professor explained. "Just because you don't think you're going to win isn't a reason not to proceed."

Video references 2013 test results

Which city officials were aware of the report remains unclear. When council made it public this week a statement said staff received detailed information about it for the "first time" Wednesday. 

But a video showing a 2015 public works meeting that has since surfaced online shows former engineering director Gary Moore saying a 2013 report raised "no concerns" with asphalt on the parkway.

Moore's statement came in response to a councillor's question about anecdotal concerns from drivers that the road was slippery and built with inferior materials.

He responded by saying the asphalt was above the grade used on 400 series highways and even went so far as to say it was "holding up exceptionally well" based on testing he said happened in 2012 or 2013.