By Pepper Parr
BURLINGTON, ON. January 30, 2012 City council going into a closed session is not unusual. They do seem to go private a little too much when the pier is involved but that is a legal mess.
Monday evening the Mayor advised Council that there would be a Closed Session at the end of the regular council meeting. Again – not unusual. But when he said it was to “discuss a confidential legal matter about the Brant Street Pier” my ears shot up.
Wasn’t it earlier in the week that the Mayor said in his State of the City address that all was well on the waterfront? Yes, he did say: I am very pleased to advise that meaningful progress has been made on the Brant Street Pier in 2012. Work has continued in the winter and staff expect the ribbon to be cut in June.
Is that an offer to settle rising above the under construction pier or have the lawyers in Hamilton just turned on the lights over there?
This wasn’t surprising. Construction is going well. The contractor has managed to pour some concrete and while 11 days were lost when Sandy hurricane hit the United States all was well. So well that plans for the Official Opening during the Sound of Music festival were underway if only in a preliminary way. The largest service club group in the city is talking to staff about some ideas they have.
While construction is going well – things on the legal side are actually beginning to move along as well. That process lawyers call “discovery” where each side gets to ask the other about information that has come out of documents each side has made available to the other begins. Because there are so many players in this game close to a month has been set aside.
This legal quagmire is not just the city suing Harm Schilthuis and Sons Ltd. , and AECOM plus a bunch of smaller players for $7,500,000. Schilthuis is counter-suing the city for $2,699,344.32.
The first version of the pier was to be built for $6.9 million – that figure worked it’s way up to the $15.9 million the project has cost to date.
The rocket scientists out there can do the math with those numbers. Do you see the “win-win” for the city in there somewhere?
February 4th – Ross Steel goes through the process
February 5th – PV&V gets its turn
February 6th – Lombard Insurance gets to talk and answer questions
February 7th – Brave, a concrete company gets its turn.
February 8th EFCO Canada Company
February 11th , 12th and 13th Harm Schilthuis and Sons Ltd. is in the room
February 14th Burlington’s Director of Engineering, Tom Eichenbaum gets to answer questions.
February 15th – Zurich Insurance is up.
The Judge handling this case has apparently allowed extra time for Eichenbaum to answer questions.
At this stage in the proceedings all the evidence is on the table. The city has turned over 23,000 pages of information consisting of emails and reports – anything that was written down relating to the construction of the pier. The prime contractor Harm Schilthuis and Sons Ltd. has given the city 17.000 pages.
With all the evidence on the table lawyers on both sides question witnesses and delve into the details as they build their case. Why did you say this in that document; what did you mean when you wrote that – that kind of thing.
Lawyers get a pretty good sense of where their case is going once they have gone through all the documents and if there is going to be a settlement before a case goes to court – this is the time to have a conversation. Who takes that first step and how they take it is a critical part of the legal dance.
One side doesn’t want appear weak by asking if “perhaps we can talk”. That’s what lawyers do for a living.
Knowing this – one had to wonder – what was it that the city solicitor Nancy Shea Nicol wanted to talk to city council about in a closed session?
The Mayor had said all was well on Thursday.
Construction of the pier was going just fine in the fall with very little time lost due to weather. The legal case was moving along just as well. Will there be a settlement before the pier is opened?
Methinks someone has suggested there might be a possible settlement before things go any further. Who talked to who and when? We don’t know but we are pretty sure the city is engaged in a conversation.
The Closed Session lasted for about 50 minutes after which council decided to:
Refer memo dated January 28, 2013 from Nancy Shea Nicol, City Solicitor, providing a litigation update on the Brant Street pier; and Direct the City Solicitor to provide further information to the Budget & Corporate Services Committee meeting of February 5, 2013.
What that means is that the city solicitor sent Council a memo; they discussed that memo in a Closed Session of Council and then directed to city solicitor to provide more information to a council committee that meets next Tuesday.
We can’t wait to hear what gets said: will they do that in a Closed Session as well?
Stay tuned.
