On the recommendation of the undersigned, the Lieutenant Governor of Ontario, by and with the advice and concurrence of the Executive Council of Ontario, orders that:

Whereas under the Public Inquiries Act, 2009, the Lieutenant Governor in Council may appoint a commission to inquire into any matter of public interest;

And whereas the City of Ottawa (“City”) Stage 1 Light Rail Transit system (“OLRT1 Project”) has experienced several issues that have had a negative impact on the people of Ottawa including, most recently, breakdowns and derailments which led to a system wide temporary shutdown and have raised concerns in the public about the safety of the OLRT1 Project (“OLRT1 Project Issues”);

And whereas, as a major financial contributor to the OLRT1 Project, the Government of Ontario desires to ascertain the circumstances in the procurement, delivery and operations of the system that led to the OLRT1 Project Issues;

And whereas it is considered in the public interest for the Government of Ontario to appoint a commission to identify the circumstances and contributing factors that led to the OLRT1 Project Issues and make recommendations to assist in preventing such issues from happening again, both in respect of the OLRT1 Project, and any subsequent phases of the City’s Light Rail Transit system, and in respect of other municipal or provincial light rail transit projects;

And whereas it is considered advisable to set out the terms of reference for such an appointment and recommendations.

Therefore, pursuant to the Public Inquiries Act, 2009, it is ordered as follows:

Commission

  1. A commission is established, effective as of the date of this Order in Council (the “Commission”).
  2. The Honourable C. William Hourigan is appointed as Commissioner under section 3 of the Public Inquiries Act, 2009.

Mandate

  1. Having regard to section 5 of the Public Inquiries Act, 2009, the Commission shall inquire into the commercial and technical circumstances that led to the OLRT1 breakdowns and derailments, including:
    1. The decisions and actions that were taken in determining:
      1. the procurement approach the City selected for the OLRT1 Project;
      2. the selection of the Rideau Transit Group (“Concessionaire”); and
      3. the award of the alternative financing and procurement (“AFP”) contract for the OLRT1 Project to the Concessionaire;
    2. Whether the City-led procurement process had an impact on the technical standards applied for the OLRT1 Project and the design, building, operation, maintenance, repair and rehabilitation of the OLRT1 Project;
    3. Whether the AFP contract between the City and the Concessionaire (“Concession Agreement”) was adequate to ensure that the design, building, operation, maintenance, repair and rehabilitation of the OLRT1 Project was carried out in accordance with all applicable laws and industry standards, including performance and safety;
    4. Whether the Concessionaire and its subcontractors did carry out the design, building, operation, maintenance, repair and rehabilitation of the OLRT1 Project in accordance with applicable laws and industry standards; and
    5. Whether the City’s oversight of the Concession Agreement and the OLRT1 Project, including its audit, evaluation, inspection and monitoring of the OLRT1 Project, was adequate to ensure compliance with the Concession Agreement and any applicable laws and industry standards. The above includes an inquiry into the decisions that led to the declaration that the OLRT1 Project had reached substantial completion and any associated testing carried out to support such declaration.
  2. The Commission shall perform its duties without expressing any conclusion or recommendations regarding the potential civil or criminal liability of any person or organization. The Commission shall further ensure that the conduct of the inquiry does not in any way interfere or conflict with any ongoing investigation or legal proceeding related to these matters.
  3. Where the Commission considers it essential and at its discretion, the Commission may engage in any activity appropriate to fulfilling its duties, including:
    1. Conducting research and collecting information, including conducting interviews and undertaking surveys;
    2. Conducting inter-jurisdictional research to identify practices in other jurisdictions that are relevant to this inquiry;
    3. Consulting with, or seeking submissions from, key stakeholders and sector experts;
    4. Consulting with the general public, including consulting prior to making its rules or determining who may participate in the public inquiry; and
    5. Receiving oral and written submissions.
  4. The Commission shall, as much as practicable and appropriate, refer to and rely on the matters set out in section 9 of the Public Inquiries Act, 2009. In particular, the Commission shall review and consider any existing records or reports relevant to its mandate. Further, the Commission shall rely wherever possible on overview reports submitted to or created or written by the inquiry. The Commission may consider such reports and records in lieu of calling witnesses.
  5. Pursuant to section 14 of the Public Inquiries Act, 2009, the Commission shall hold public hearings.
  6. The Commission may exercise the powers provided in section 13 of the Public Inquiries Act, 2009.
  7. The Commission shall, wherever practicable, rely on representative witnesses on behalf of institutions and may convene or consult, or both, with panels of representative witnesses to fulfill its mandate in a timely manner.
  8. In accordance with the Public Inquiries Act, 2009, the Commission shall obtain all records necessary to perform its duties and, for that purpose, may require the provision or production of information that is confidential or inadmissible under any Act or regulation, other than confidential information which is described in sections 19 and 27.1 of the Auditor General Act. Where the Commission considers it necessary, it may impose conditions on the disclosure of information to protect the confidentiality of that information.
  9. The Commission shall follow Management Board of Cabinet directives and guidelines and other applicable government policies unless, in the Commission’s view and having regard to its mandate, it is not possible to follow them.
  10. The Commission shall promote accessibility and transparency to the public through the use of technology, including establishing and maintaining a website and holding virtual hearings where the Commissioner deems it appropriate.

Designated Minister

  1. The Minister of Transportation is designated as the minister responsible for the Commission under clause 3(3)(f) of the Public Inquiries Act, 2009.

Funding

  1. The Commission may make recommendations to the Minister of Transportation regarding funding to participants in the inquiry to the extent of that participant’s interest where, in the Commissioner’s view, the participants would not otherwise be able to participate in the inquiry without such funding. Such funding shall be in accordance with Management Board of Cabinet directives and guidelines.

Final Report

  1. The Commission shall conclude its mandate and deliver a final report to the Minister of Transportation containing its findings and conclusions and including any recommendations on or before August 31, 2022 or, if the Minister of Transportation agrees in writing, no later than November 30, 2022.
  2. In delivering its final report to the Minister of Transportation, the Commission shall ensure that:
    1. in so far as practicable, the final report is in a form appropriate for public release, and consistent with the requirements of the Freedom of Information and Protection of Privacy Act and other applicable legislation; and
    2. any electronic version of the report is in at least one accessible format, satisfactory to the Minister of Transportation.
  3. The Commission shall be responsible for translation and printing and shall ensure that its final report is delivered in English and French, at the same time, in electronic and, upon written request of the Minister of Transportation, printed versions.
  4. The Minister of Transportation shall make the Commission’s final report available to the public as soon as practicable after receiving it.

Financial and Administrative Matters

  1. The financial and administrative support necessary to enable the Commission to fulfill its mandate shall be provided in accordance with sections 25, 26 and 27 of the Public Inquiries Act, 2009.
  2. All ministries and all boards, agencies and commissions of the Government of Ontario shall, subject to any privilege or other legal restrictions, assist the Commission to the fullest extent possible, including producing documents in a timely manner, so that the Commission may carry out its duties.
Ministry of Transportation

Approved and Ordered: December 16, 2021