Toronto Star Estrin Lawsuit Story

It was just such an interesting story in the Toronto Star today that revealed all kinds of new information that I just had to post it and make comments about the remarks made in the body of the article. Remember, I am a "fisker" after all.

I guess it means that when Big City newspaper reporters call they get a lot more information out of Big City lawyers, our Mayor and the Federal Government.

It's a shame that the national media do not pay more attention to the border story that is vital to Canada's economic prosperity. If they had, then we would not have the mess and lack of action that we have had for years down here.

Bridge owner sues law firm, claiming it spanned both sides
Feb 13, 2007 Tara Perkins,business reporter

One of Canada's biggest law firms is fighting a lawsuit launched by the company that owns the Ambassador Bridge, in a saga that ensnares the City of Windsor, a leading Canadian lawyer and a rich and secretive U.S. transportation magnate.

Detroit International Bridge Co., which owns and runs the Ambassador Bridge that links Detroit to Windsor, is suing Gowling Lafleur Henderson LLP and one of its partners.

DIBC says Gowlings worked for the City of Windsor to try to thwart plans to build a new, six-lane crossing right next to the Ambassador Bridge. At the same time Gowlings did work for DIBC, including raising more than $500 million (U.S.) in financing for the project.

Wait a minute, the Windsor Star Story did not say this. It merely said that the Bridge Co. "recently used the firm for a variety of legal dealings...The bridge company sought tax advice from an accountant at the Gowlings office in Ottawa in June 2005...The work eventually extended to include a tax lawyer in the law firm's Toronto office in December 2005. "

It's a lot different if the Toronto Star is correct to have one part of the firm trying to raise money for the enhancement project and another part trying to kill it.

"Because of its retention of and contract with Gowlings, DIBC provided Gowlings with substantial confidences and secrets, as well as other privileged information, with regard to the development and financing of the span which Gowlings would not otherwise have received," court documents filed in Michigan allege.

"Success with respect to the span would position the Ambassador Bridge to remain the premier commercial and tourist border crossing between the United States and Canada."

Gowlings is asking a Michigan judge to dismiss the suit, and is fighting DIBC's attempts to have it heard by a jury.

DIBC is controlled by billionaire Manuel (Matty) Moroun, who will be 80 this year and who also controls major trucking firms.

In the 1970s, Moroun bought out legendary investor Warren Buffett's stake in DIBC to take control of the company, which remains the only private entity to own a major border crossing between Canada and the United States.

In a 2004 article, Forbes magazine described Moroun as a squat, soft-spoken man who jealously guards his interests.

He has taken on so many foes in court that one lawyer described him as "a one-man lawyer employment act."

Accordingly, I wonder if Dan Stamper has been in front of judges (as a witness) more times than Eddie has been in actual practise in front of a judge as a lawyer.

The City of Windsor has been pressing Moroun to carry out thorough environmental assessments on his plans for the new crossing, including examinations of how noise and vibrations from extra traffic would affect residents.

"Every chance they get, they make representations that say, `There won't be any harm to the City of Windsor, so we don't need to do that study,'" Windsor Mayor Eddie Francis said in an interview.

Oh yes, is Windsor doing these tests for its Tunnel Plaza Improvemnts project as well? If so, I have not seen the results. Nor have I seen a Report on the effect on the environment downtown of exhaust from the unscrubbed Tunnel Ventilation Building. It is somewhat hypocritical to require the Bridge Co. to do a "thorough environmental assessment" when DRIC is doing less.

The governments of Canada, the United States, Ontario and Michigan have been working for several years to choose a location for a new border crossing that will be a public-private partnership.

Francis said Windsor supports that process, which has identified three options, all west of the Ambassador Bridge on the industrial side of Windsor.

Now Eddie supports the DRIC process. When did that happen?

Transport Canada spokesperson Mark Butler said a final choice is expected this summer. The governments plan to call for tenders and build a bridge by 2014, at an expected cost of $1 billion to $2 billion.

So governance has been decided already, a P3 bridge, and the cost has been estimated. I did not hear about it, did you?

Depending on interest rate and term of a lease, a bidder could expect to pay around $100 million per year just for interest cost and principal costs alone never mind operating costs. Since that is substantially more than the Bridge Co. supposedly earns now then taxpayers can foot the difference forever. Even assuming that the new bridge can capture 50% of the traffic at the crossing, I figure that the tolls will be around 3 or 4 times more than the Bridge Co's tolls.

No wonder there is a need for Brian Masse's public authority. A NEW BRIDGE COULD NEVER COMPETE IN THE MARKETPLACE.

What happens when all crossings here go broke due to lack of traffic, more Government subsidization with the Sarnia/Port Huron people laughing themselves silly at our misfortune?

Theoretically, the western government project and DIBC's second bridge next to the Ambassador Bridge could both be built.

I was fooled by this phrasing. I thought she meant the story on February 9 about Canada's federal government and the government of British Columbia "have agreed to cost-share the construction of a new seven-lane bridge across the Pitt River" The Federal government is providing $90 million in funding.

Yes Councillor Valentinis, no one is listening to Windsor nor giving us any money. DON'T YOU AND YOUR COLLEAGUES GET IT YET.

The suit against Gowlings by DIBC and its parent company, CenTra Inc., also names Toronto-based Gowlings environmental lawyer David Estrin, who has been representing Windsor since late 2002.

Estrin has lived in Toronto for decades and is fighting the suit on the basis that the U.S. court has no jurisdiction over him as a Canadian.

"Basically, the lawsuit, in my view, is an attempt at intimidating me from continuing to act for the City (of Windsor)," he said yesterday.

He said he was served with the suit in November, just as he was about to walk into a key meeting with senior officials from the U.S. Coast Guard in Cleveland to argue that DIBC's proposal needed further environmental review.

"Just when I was about to walk into that meeting, the elevator doors opened. Out walked Dan Stamper, the president of the bridge company, and his American attorney and a processor, and I was served with this lawsuit.

"So, the timing of the service of this was clearly an attempt to intimidate me from going into that meeting and proceeding with that meeting. And, subsequently, they have told our American lawyers that they're prepared to settle this lawsuit for no money. All they want is me off the case."

Don't you just love the theatre of this, such drama. Just like the movies.

Frankly, if I were a Gowlings partner and the Bridge Co.'s allegations are true, I would jump at a settlement that says remove the conflicted lawyer from the file immediately, you won't have to fight a lawsuit and your E&O insurers can close their file, you won't have to talk to the Law Society and it won't cost you any money in a possible huge damages claim. Poor Mr. Estrin was so intimidated that he attended the Senate hearing the next day with the Mayor

DIBC's lawyer said a request for comment was passed on to the firm, but company officials did not respond. The suit alleges breach of contract, breach of fiduciary duties and legal malpractice. The company says it did not know until last fall that Gowlings was working for Windsor.

"There's clearly no conflict here," Estrin counters. "They clearly knew at the time they retained the (Gowlings) tax people that I had been acting against them for many years. I had meetings with Mr. Stamper in his office in Michigan, and had sent him several letters threatening lawsuits, not only on behalf of the City of Windsor, but on behalf of other clients. They came to Gowlings and retained the tax people knowing that we already acted against them on the bridge issue."

Hmmmm I wonder when he threatened lawsuits...Did Councillors authorize that? Where are these letters? More interestingly, who were the other clients?

In court documents, Gowlings said that when its tax lawyers were hired in 2005 by Canadian Transit Co. – a subsidiary of DIBC that owns the Canadian side of the Ambassador Bridge – a standard conflict search was done in the firm's client database.

"The search did not reveal Estrin's representation of Windsor adverse to CTC because, when Estrin's general representation of Windsor on border crossing matters gradually turned adverse to CTC in 2003, he did not amend his initial conflict filing to add CTC as an adverse party."

Fascinating..Gowlings must have 2 conflicts search systems, one more thorough when a party is adverse in interest. If Gowlings did not know about this, and they are his partners, then how could the Bridge Co.? Is this an admission of negligence? Why didn't Estrin amend his initial filing? He was an experienced partner in the firm and would understand the significance.

I found the comment about his representation turning adverse in 2003 strange. He was retained to fight the JMC Report in late 2002. I was told by a Senior City Administrator that his initial retainer ran out in February, 2003, something that was unknown to me anyway. He was retained later in 2003 to fight the Rail lands bylaw issue. In 2004, he was retained to "be at the table during an upcoming OMB appeal of a city bylaw which prohibits non-rail use of railway lands. And he will represent the city during talks with the federal and provincial government over funding for border road improvements."

When did he become adverse? I don't really know what he did for Windsor since in May, 2006 " City solicitor George Wilkki would not itemize the legal fees or provide a description of the work that was done...That type of detailed information could reveal the city's legal position and strategies, "leaving the city at a legal disadvantage," he said in a report to council."

It was not until November, 2006 that we learned publicly that "The City of Windsor considers the proposed bridge to be fraught with significant and adverse environmental consequences for the city and its residents," according to a 35-page report presented in Cleveland by Toronto lawyer David Estrin, the city's hired gun on border issues."

It will be interesting to see how Estrin supports his comment.