“I fear not having one because we’re going to be railroaded.”
Coun. Henry Oosterhof summed up the dilemma facing Elizabethtown-Kitley council Monday as members wrestled with whether to enter a confidentiality agreement with ALTO.
Elizabethtown-Kitley council ultimately decided not to sign the agreement after receiving legal advice outlining the implications of doing so.
The decision came Sept. 14 following a Sept. 11 legal opinion from David Munday of Cunningham Swan on ALTO’s proposed Confidential Information Sharing Agreement.
ALTO is the federal Crown corporation responsible for developing a proposed $90-billion high-speed passenger rail network between Toronto and Quebec City. The project has raised concerns in Elizabethtown-Kitley over potential routes through the township and their impact on farmland, rural properties and residents. ALTO has paused discussions with municipalities during the municipal election.
Council faced a difficult choice: signing could give the township access to information it might not otherwise receive, but restrict what council could tell residents. Refusing could leave council and staff with little information as the project develops.
Mayor Brant Burrow described council as being caught either way.
“We’re handcuffed if we do sign an agreement, we’re essentially handcuffed to a different post if we don’t sign the agreement,” he said.
Munday advised that if the township enters the agreement, public commentary by council would be limited to information already in the public domain. Responses to residents seeking further information could also have to reference the agreement as the reason the township cannot comment on information exchanged with ALTO.
“If Council’s preference is not to be constrained in any way or limited in sharing information with residents, it should consider the ramifications of entering the Agreement,” Munday wrote.
But refusing to sign carries its own consequences.
“In the absence of an NDA of some sort, we would expect ALTO to share very little, if any, information, status updates, etc. with the Township,” Munday wrote.
The proposed agreement does not specify what information would be shared or considered confidential. It also cannot be terminated unless both parties agree, and information that continues to meet the definition of confidential would remain protected even after termination.
Oosterhof said having more information could better prepare the township to deal with ALTO, while making clear he remains opposed to the project.
Coun. Dan Downey took a firmer position against signing.
“I haven’t heard a resident yet who supports signing an NDA,” Downey said. “I believe my job as a councillor is to basically mirror what most of the residents say.”
Downey also raised concerns about the lack of an end date and the possibility that confidentiality obligations could continue years into the future.
Coun. Eleanor Renaud, who said she opposes ALTO because of its potential impact on agricultural land, questioned whether refusing the agreement could put the township at a disadvantage.
“Not signing and not having the information, not being party to anything that’s going on, we’ll be in the dark as much as the public is in the dark,” Renaud said.
“How detrimental is that to us? It’s such a quandary to know which way is the right way to go. But not knowing anything, are we not then setting ourselves up to fail?”
Coun. Rob Smith also questioned what the township could lose by not receiving information, stressing that entering an information-sharing agreement would not mean accepting or supporting the ALTO project.
Burrow made the same distinction.
“The message we received from our residents is very clear,” Burrow said. “They want us to do everything we can to protect their interests and the township’s interests.”
The approaching Oct. 26 municipal election added another consideration: whether the current council should enter an agreement that could impose continuing confidentiality obligations after the new council takes office.
Coun. Earl Brayton questioned leaving the matter for the incoming council and how familiar some candidates are with township business.
“I kind of have a problem [when] a new council comes in here,” Brayton said. “They’ve never been to a meeting. I haven’t seen any of them that are running in the election at a meeting. They don’t even know what the inside of the building looks like.”
Renaud said the incoming council would be capable of considering the issue if it returns.
“I think that they are very well informed already on ALTO, and I think that they could probably make a very well-informed decision on whether or not to sign an NDA,” she said.
Brayton was unequivocal about his own position.
“I will not sign in any way, shape or form, and I don’t have to think about it today, tomorrow, the next day,” he said. “I say no right now.”
CAO Rob Nolan said the township’s procedural bylaw does not specifically address reconsideration across council terms, but generally a future council can change a previous council’s decision if substantive action has not been taken to implement it.
By declining to enter the agreement now, council has not imposed its confidentiality requirements on the council taking office after the election. A future council could reconsider the issue.
“The reality is, we can make a decision tonight, but it really doesn’t make any difference,” Burrow said.
Council ultimately agreed to direct staff not to enter into the Confidential Information Sharing Agreement with ALTO.
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