Any public statement regarding the status of the project or the details of delays which Metrolinx/the Province did not provide may have been for the purposes of reputational management but equally (and more likely) are to support their commercial, and indeed legal, position. If Metrolinx were to openly disclose detailed internal assessments about how far behind schedule the project was at various milestones or the specific reasons for added costs, they would create a legal vulnerability. This could be used by Crosslinx to argue that Metrolinx knew about certain delays or defects earlier than officially acknowledged and failed to act in a manner that could mitigate those issues. This, in turn, could lead to legal claims that Metrolinx itself breached certain oversight duties or contributed to the delays, thereby supporting any legal claims that Crosslinx might make.
Conversely, if Metrolinx were to take Crosslinx's own assessments at face value and publish them, Metrolinx would then accept the risk that they are overly optimistic or end up changing, legal liability for Metrolinx could emerge if those published timelines turn out to be inaccurate and stakeholders rely on them to their detriment (e.g. TTC starts paying staff to operate a line that isn't generating revenue).
This is actually one of the beefs I have with how ML has managed its P3's. They rely on litigation as an early and priority method of resolving issues and disputes.
A process that assumes litigation early in what is structured as a 30-year contract is unsound on its face. It's a bit like marital prenups. They are a good idea, and many people choose to sign them.... but if a couple are already calling for their lawyers to enforce the prenup on the third day of their honeymoon, it bodes ill for the marriage.
There is a time and a place for litigation and for claims processes. They should not be allowed, however, to take precedence over open discussion and disclosure of the facts. Lawyers may hate to lose, but if ML is in fact negligent then I see nothing wrong with this being revealed and ML taking its lumps. It may be painful, but binging the facts forward ensures issues are managed effectively.
Further - The moment the lawyers enter the picture, they will advise against releasing any information, out of an abundance of caution. That may be normal legal advice, but it destroys the entire premise of transparency and accountability to the public. More importantly, it removes any incentive for ML or the contractor to have open and constructive discussion so that problems are investigated and corrected promptly. With both Crosstown and Finch we have seen how litigation and legal wrangling has led to delays in completing the work, simply because the lawyers are inclined to gamesmanship. And, it's just too easy for ML to hide behind this as an excuse for not owning up to things.
If transparency is the only issue we need to get to the bottom of, I'll save you the inquiry: either due to oversight or because a technical advisor advised that a rigorous accountability/reporting mechanism that could be made public created a risk for the private sector that would disincentivize proponents from bidding on the project, so it was not included as a requirement in the project's output specifications. Or, possibly, it was and Crosslinx negotiated its removal prior to financial close. That's it. Even if this was an element that was identified later on as having a benefit and Metrolinx sought to add it the likelihood of Crosslinx accepting it would be slim and they wouldn't have any obligation contractually to accept it.
A minimum level of transparency particularly around basic matters of project scope, progress against scope, spend to date versus results achieved, milestones met, etc.can be agreed to without scaring away the contractor or giving away the ship legally. Should a dispute arise, there can be basic disclosure that the issue has arisen, and a very basic statement of the position of each party can be disclosed without destroying either party's legal strategy.
Contractors need not disclose commercially sensitive matters, but ultimately they want the business and imposing some responsibilities for disclosure on them is quite reasonable. At the end of the day, they want the business.
Issues can be discussed and solutions negotiated in private, and settlements may be without prejudice or admission of blame, but letting the parties run away with secrecy to the extent that we have seen with these processes is partly how things fall apart.
- Paul
