Inquiry into Elliot Lake mall collapse first test of new rules

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The coming public inquiry into the collapse of part of the Algo Centre Mall in Elliot Lake will be the first test of Ontario legislation intended to speed up such proceedings and give the government more control over them.

In practical terms, it could mean the quasi-judicial probe will rely a little more on documents and a little less on dramatic public hearings than in years past. The new rules were enacted in 2009, but this is the first provincial inquiry to be called since.

Although the full details of the proceedings, announced in a late-day press release Friday by Premier Dalton McGuinty, have not yet been revealed, a look at previous inquiries offers some idea of what to expect.

First, cabinet will name a commissioner to lead the proceedings and submit a report, and provide him or her with specifics on the inquiry's scope. Next, the commissioner and a team of lawyers, will interview potential witnesses and sift through documents.

At some point, they will issue notices to people and organizations that will be scrutinized in the inquiry. In this situation, it would likely include everyone from the mall's owners to government agencies charged with inspecting the building.

These various parties can then request standing in the proceedings, which allows them the right to be represented by lawyers at the public hearings, to cross-examine witnesses and present submissions to the commissioner. Typically, commissioners try to streamline things by encouraging those with common positions to team up rather than duplicate each others' work, said Toronto lawyer Brian Gover, a veteran of several inquiries including the one into an E. coli outbreak in Walkerton, Ont.

The 2009 changes were geared toward limiting the length of public hearings, which can be costly, by directing commissioners to make more use of pre-existing information. In this case, this could mean inspection records or reports by engineers on the building's structural integrity.

"Under the new legislation, there's more of that trying to dispense with the requirement of testimony and the traditional mechanics of proof whenever you can," Mr. Gover said.

The province will also have the power to set a deadline for the commissioner to finish his or her report, something it could not do at previous inquiries. Cabinet will not establish a specific timeline, but Mr. Gover points to Walkerton as a benchmark: In that case, the province ordered an inquiry in late May and hearings began less than five months later.

While the commissioner has the power to compel witnesses to testify and order the release of information, the purpose of the inquiry is not to determine criminal or civil liability. Its mission is instead to determine exactly what happened – likely why part of the roof fell in and how the emergency response played out – and make recommendations to avoid a similar tragedy in the future.

It is more of an investigation than a court proceeding, meant to answer the questions arising from the incident, with much of the process played out in public.

"The point is that it's not an adversarial process," Mr. Gover said. "This is one of those situations where the public is questioning how this state of affairs could have occurred. It's a classic example of a government using a public inquiry to get to the bottom of a matter of pressing public concern."