Former Mississauga CAO says provincial crown corporations asked her to sign NDA preventing her from speaking with local council

The agencies say NDAs are not intended to exclude council. The 2017 case is the second such claim after York Region staff reported being asked to sign an NDA relating to planned transit-oriented communities.

Thestar.com
March 1, 2022
Donovan Vincent

A senior bureaucrat in Peel says she was asked by two provincial crown agencies to sign an agreement preventing her from revealing to local councillors and the mayor important details of a major transit project in Mississauga -- but she refused.

The agencies, which admit to seeking nondisclosure agreements with local city staff, say their intention is not to exclude elected officials.

It’s the second such instance that a senior municipal staff member is reporting being asked by the province not to speak to local councillors about a major project.

Infrastructure Ontario made a similar request to senior staff in York Region regarding two proposed transit hubs in Markham and Richmond Hill, according to York Region’s chief planner.

Janice Baker, Peel Region’s current chief administrative officer, was serving as CAO in Mississauga around mid-2017 when she received a draft nondisclosure agreement pertaining to the $4.6-billion project Hurontario LRT project, expected to finish in 2024.

Baker says representatives from provincial crown agencies Infrastructure Ontario and Metrolinx demanded she and all Mississauga staff involved in discussions pertaining to the line -- detailed planning, as well as procurement to secure a vendor to design and build it -- not speak to elected officials in the city as part of a nondisclosure pact.

“I was just floored,” Baker said in an interview this week, adding she found the request to be an “inappropriate ask.”

“Everything had to be approved by Metrolinx and Infrastructure Ontario -- all external communications had to go through them, as part of the broader NDA. It effectively put a lid on any staff at the city saying anything about the project, the status of the project, the details, none of that,” Baker says, noting she was told their concern was information getting out during the competitive process.

She believes the crown agencies “saw council and council meetings, I guess as a potential risk. That would be the only explanation that I can offer,” Baker says.

She refused to sign the NDA until the clause about not speaking with elected officials was taken out. She later met with the CEOs of Infrastructure Ontario and Metrolinx to voice her concerns and the clause was removed.

In a statement this week, Metrolinx chief legal officer Heather Platt said confidentiality agreements are a “standard mechanism to protect privileged, proprietary or commercially confidential information.” She said there are no clauses that prevent city staff from briefing elected representatives on subway programs, new stations, LRTs or transit-oriented communities.

Anne Marie Aikins, a spokesperson for Metrolinx, said while she can’t speak to the exact circumstances involving Baker, “I have no reason to deny what she says.”

Aikens says it’s not the agency’s intention to exclude elected municipal councillors and that any NDA provisions should be extended to them.

“We know they are important and need to be briefed just like other city staff have to be briefed.” Aikins adds.

Baker says NDA clauses like the one she was asked to go along with treat municipalities “as though we can’t be trusted with sensitive information and ignores the fact that there are very often financial and operational implications for municipalities that arise out of these projects, and these are all issues council has a right and obligation to know.

“So bringing (council) along and having them informed and involved in some of these critical decisions, to me is just good governance,” she said.

Baker’s disclosure of the requested NDA clause comes after the Star reported recently that senior municipal staff in York Region, including Paul Freeman, chief planner for the region, were told that as part of nondisclosure terms they couldn’t talk to elected officials about a major subway proposal from Ontario Premier Doug Ford’s government.

Ontario’s Yonge North Subway Extension proposal calls for two major subway-oriented residential communities, one in Richmond Hill, one in Markham, and the doubling of residential densities from what’s been planned locally -- which has residents and politicians fuming.

In an email to the Star, Freeman said staff with Infrastructure Ontario, a crown agency that serves as the procurement and commercial lead for all major public infrastructure projects in the province and Ministry of Transportation staff (now with the Ministry of Infrastructure) “verbally advised” in meetings last summer that the transit-oriented community proposals were to be kept “strictly confidential and subject to an NDA.”

Freeman said York Region staff didn’t sign the agreement and when they “voiced concerns” about the restrictions related to sharing the proposals with elected officials and the community, provincial staff made it “verbally clear they (themselves) would engage these groups and asked York Region not to share any details of the TOC proposals.”

In a statement this week, Infrastructure Ontario spokesperson Ian McConachie, who referred queries on the 2017 NDA to Metrolinx, said of the York Region request that early sharing of information with regional and municipal staff, pertaining to transit-oriented communities, “is crucial” in order to advance proposals before they are made public.

“This allows for preliminary constructive conversations and offers the opportunity to gain valuable feedback from local staff.”

But McConachie added the confidentiality agreement “does not prevent staff from speaking to elected officials regarding the TOC proposals,” provided staff convey the confidential obligations of the information and documents being shared to their elected officials. An acknowledgment from the elected officials of those obligations is also required, McConachie added.

He added that the “core” concept packages for the transit hubs were submitted to the region for early review and feedback, including briefings to affected elected officials, in the summer of 2021.

But Markham regional councillor Jack Heath says no councillors in Markham that he knows of, including himself, were made aware of the proposals until public open houses at the end of last year. He was “astounded” to learn of the proposed densities, and that those details had been kept quiet so long.