Compromise Or Complete Capitulation

Guess who are the winners and losers after Monday night at Council. This long BLOG will explain the results in detail.

Eddie Francis' misguided advocacy for his Greenlink solution has backed him into a corner from which he cannot escape. He is our City's equivalent of former Conservative PM Joe Clark now. Even getting 66% of the vote at a political convention was deemed a loss for Joe that ultimately cost him his job as Leader. Getting less than Greenlink but more than a DRIC road has to be a loss in political terms for Eddie as well that will be his legacy.

We have an investment being promised by the Senior Levels of almost $2B and 12,000 jobs for a troubled Windsor economy. But that is not good enough for our Mayor. Like Oliver, he wants more please.

No matter what happens, no matter what compromise may be developed, he has failed. He lost and did not get us his first choice, full tunnelling. He has lost again because the best he will be able to achieve now as he was told on Monday night in no uncertain terms, is a "refinement" of the DRIC road.

Oh it may be categorized as a "win" for Eddie by the cheerleaders and sycophants but you can feel the utter desperation in the Star Editorial today:

• "What's the magic number? Somewhere between 33 and 64 per cent road coverage lies a compromise the city and province -- and long-suffering area residents -- should be able to live with. This town, with its proud union history, is no stranger to negotiations.
  
  
  But we can't negotiate with ourselves. If the other side won't do the work to understand our offer, let alone entertain the notion of finding common ground, what is there left to talk about?"

You read this BLOG not necessarily because you agree with what I write but to get an alternative point of view. Let me give you one today that you may find shocking. You may even need to read what I wrote twice just to make sure that you understand how I reach my conclusion.

I litigated or managed litigation using outside lawyers for most of my professional career. You need to understand the litigation lawyer mentality. What I found, with few exceptions, is that they like to sue. They like to go to court. That's why they are litigators. Accordingly, what took place at Council on Monday seems to be so out of character that one needs to try and understand why.

One need only look at the Capitol Theatre litigation to know that Windsor does not like to settle either. Just watch the Junction lawsuit to see how far it is pushed in the Court process before there is a resolution. Windsor does settle as with MFP but only because there our key document was allowed to be made public by the Court of Appeal thereby weakening our litigation position severely.

As far as I'm concerned, Monday night's performance at Council by the Mayor, Councillors and outside counsel was nothing more than complete capitulation by the City while pretending to be the tough guys. It was all fluff not stuff. They were waving the white flag of surrender and hoping that no one would understand that other than the Provincial politicians that Eddie had met in secret a few weeks before.

Monday night was not for the Senior Levels since Eddie had already met previously with Sandra and Dwight in secret nor was it for the DRIC people because they are mere bureaucrats and messengers, not decision makers. Monday night was theatre for the public, the media, and more importantly for the Councillors for Eddie to be able to keep them in check since otherwise he would lose control over Council.

Don't you find it amazing that so much time was spent at Council on Monday talking first about self watering planters so that if anyone was there to watch the DRIC people talking about the DRIC road, assuming that anyone knew they would be presenting, they would probably have left out of boredom at seven o'clock to watch the hockey and/or basketball games. It took that long for DRIC to appear.

Accordingly, few people would see the DRIC video on the DRIC road and it was very well done as even the Mayor admitted on Face-To-Face. All that they would know would be all of the media stories saying how Council and their lawyer destroyed DRIC with their brilliant questioning and cross-examination.

Why even Gord used my word "bushwack" to describe the farce staged by the Mayor and the Eminence Greasie to save Eddie's reputation and his future!

There is a game going on but I have to admit that I'm not quite sure what it is yet.

If the Mayor is right and the DRIC process was designed to fail, then all that Monday was designed to do was to permit the Mayor to look like a hero. Accordingly, when the Feds and Province "impose" what they always wanted on us supposedly because they cannot get anywhere with the City--- the expansion and upgrading of the E C Row Expressway--- Eddie cannot be blamed.

He will be our hero and our martyr as he forces the Senior Levels to throw money at us for the Tunnel deal and Brighton Beach (That strategy was around in Mike Hurst's day for heaven's sake so it really is nothing new!). How about money for the Airport lands or perhaps to fix up a brownfield or two like the Zalev site.

He tried as best as he could but after all, he is only the Mayor of a small town. He has no authority; he has no clout! That was another Hurst strategy!

Sure, accuse me of being very cynical but then again when only a relatively few million dollars will being given to expand the Sarnia approach to the border and almost $2 billion is being offered here, then one has to wonder and speculate. In my opinion, we are being Delrayed as I have said before by the conceptual DRIC video.

For the sake of argument today however, let's forget about my cynicism. Let's try and analyze what happened on Monday.

To me, it is totally out of character for our Mayor to set out his position so openly. When has he ever done that before? To me, it is very unusual to see an experienced litigator like David Estrin set out in public the legal arguments that he may make in six months time or perhaps even longer because the timetable for the Environmental Assessment states that it will not be completed until then. Why would he do it so far in advance and give DRIC's lawyer so much time to build a legal rebuttal?

Of course, I don't find anything wrong with setting out one's legal position even in great detail to try and force a settlement without the necessity of litigation. After all, in my opinion, that is what a good lawyer does. The last thing that a litigator should ever want to do is to have his client start a lawsuit and spend so much money in a legal case that is totally unpredictable no matter how good one feels one's case is.

That could well be what Monday night was all about. After all, in a previous BLOG, I showed you the last slide in the 46 slide Presentation and the last point on that slide where it said:

• "Further consideration of GreenLink and its attributes will not delay the process and could help resolve EA process issues."

That is settlement talk although it took David Estrin about an hour to get there in his Presentation. Could it be that what was being said to DRIC was that our case is so powerful that you had better settle with us now?

Check out Henderson's column as well. It is the same approach. The vast majority of the column is telling us how strong the City was in its position with respect to DRIC. Yet at the end, Gord says surprisingly:

• "Nobody wants to see this in a courtroom. That would be tragic, especially given how DRIC has been moving at tortoise speed. But that's where it's headed unless the preem and our MPPs kickstart a compromise.
  
  Francis is holding out the proverbial olive branch: "There's still time," he insisted. "But someone has to take the bull by the horns and fix the gaping holes."
  
  No kidding. Windsor needs a couple of heroes right now, folks who put this city's interests ahead of special interests. Dwight and Sandra, are you still with us?"

Again, is this an invitation by the powerful City to DRIC to negotiate or face the legal consequences?

That could well be the signal that City Council was delivering to DRIC. But I have to ask myself the question: if Windsor's case is so good then why not litigate now. It has been threatened enough times so why not do it when one's case is so strong, especially if it might not slow down the EA process but even could enhance it if there was a quick settlement.

Sue the bastards. Get on with it. Stop stalling and crying wolf. Why wait for six months or more?What is there to be afraid of? I am certain that Eddie and the Councillors can continue to delude themselves into thinking that the Public is behind them in whatever they do since they are fighting for the quality-of-life of Windsor for generations to come.

It doesn't have to lead to a trial. There can always be a settlement before the trial. The City does not have to wait for months and months if it is so clear that the DRIC process is illegal. Why prolong the agony? As Gord said:

• "The message couldn't have been more succinct. Or menacing. Windsor can and will sue, DRIC was warned, unless you come down off your high horses and begin to recognize value in a superior plan. And offer real concessions."

I would suggest to you however that Friday's Star Editorial undercut Eddie and Estrin completely from a legal perspective. Why would the Star take such a weak-kneed position to the success fo a City lawsuit unless they had a strong inkling that Eddie's legal case was not as strong as it appeared. After all, we only heard the City's side of the argument:

• "Whether that failure to formally analyze the plan constitutes a contravention of the Environmental Assessment process, as the city suggests and the DRIC team denies, is uncertain and a potential point of litigation...
  
  
  Even if there was no legal obligation on DRIC to weigh the city's plan against its seven factors, including air quality and community impact, there was a civic one and, in some respects, a fiduciary one."

I have to ask the obvious question whether the DRIC people are that stupid to prejudice their entire Environment Assessment and $30 million or so of taxpayer money already spent by not doing what is so clear if it needed to be done IE investigating Greenlink thoroughly. I am sure that this is not the first time that the City has made that suggestion to DRIC and I would assume as well that the bureaucrats have talked to their lawyers well in advance of Monday's meeting to understand their legal position.

Why would they ignore Greenlink? The answer is that they did not since they already incorporated Greenlink ideas in their plans, or so they have argued, and produced a number of reports slamming Greenlink.

True, they did not do a full and expensive investigation of it. Why would they? Once DRIC decided that Schwunnels could only be a maximum of 240 metres, Greenlink was dead. It did not meet their criteria.

The City has put forward red herrings several times already to stall and delay the process. In fact, the City outsmarted itself with the full tunnelling solution which allows DRIC to ignore a full Greenlink analysis! DRIC need only look at reasonable alternatives and not every alternative that the City's experts can dream up to throw a monkey wrench into the process.

I go back to the Schwartz Report #1 and remind you, dear reader, that it was the City's position for so long until the Federal Government's Cansult Report destroyed it. Then it became merely a "starting point" for negotiations as Councillor Valentinis suddenly expressed. I remember the Schwartz full tunnelling approach that was investigated by DRIC and rejected.

How much time was lost and delayed by Eddie's actions in putting forward a position that made no sense in the end. He was the Chair of the Tunnel Commission. He knew the weaknesses of a tunnel and backed off of it, especially because his rival Council Marra was its sponsor.

Now he puts forward a third approach... Greenlink. It should be obvious to almost everyone that if full tunneling is not required and an at-grade road is not acceptable, then something in between is what will happen in the end.

What if Eddie comes up with another approach or one after that...when can DRIC say enough already? Are they always at his mercy for not investigating everything about which he THINKS BIG? It is over 3 years of delay already from Schwartz #1 for which Eddie must take most of the blame.

In effect, what we are fighting over between the DRIC Road and Greenlink is a few Schwunnels at a cost of around an extra billion dollars. It is not going to happen. I know it. You, dear reader know it. DRIC knows it. And so does Eddie. That is why DRIC was so strong at the Council meeting telling the Mayor that all that they are prepared to accept at this time are "refinements."

They did not need to get into an argument with the Mayor and Council to justify their position. They did not have to do so. They just needed to smile politely and last out the time in front of Council to earn their salary. They are not going to investigate Greenlink. It adds nothing to what is being proposed other than a huge expenditure.

The reason why MTO mentioned all of its world renowned consultants at the session is to make it clear to the City and its lawyer that no Court will second-guess what they say about the road to the border. Their approach will not be set aside unless clearly they have done something illegal and if that is the case you can be assured that Mr. Estrin will not have revealed it at the public session and would have started the lawsuit already.

Don't you find it interesting again, if the City case is so strong that Gord has to beg Sandra and Dwight and perhaps even the Premier to intervene. Is Gord delivering Eddie's message in case no one read to the end of Estrin's 46 slides or they didn't understand what he was trying to say.

Even the Editorial, days after the meeting is begging again:

• "This town, with its proud union history, is no stranger to negotiations.
  
  But we can't negotiate with ourselves. If the other side won't do the work to understand our offer, let alone entertain the notion of finding common ground, what is there left to talk about?"

Eddie Francis is not interested in compromising. He knows that there is no compromise left. He met Sandra and Dwight in secret without Council before the Council meeting. He must have been given the message clearly about the DRIC road. No wonder he did not want the Councillors there. They would have been devastated and folded by now. They would be clamouring for a settlement to save their political necks as well.

I found it interesting that these lines were removed from the Star online story about Deputy Mayor Varga leaving the luncheon compared with the published Star story. It shows that Monday was a farce since Eddie was not interested in compromising just trying still to pretend to be winning. It did not matter what DRIC did or said:

• "Windsor's mayor maintains that he will push for the GreenLink alternative because this crossing will shape the region for the next 100 years. He also dismissed coming to a middle ground with DRIC.
  
  "It's difficult to compromise when we have already compromised so much," said Francis."

After reading the Star Editorial, I know now why the lines were removed. They are begging him in the Editorial to stop being a fool and take a compromise or else he will lose badly! The only way out for him is somewhere in the middle and soon, probably before the DRIC Open Houses. Has the Star finally figured out that Eddie's ego is bad for Windsor's future?

Eddie has never compromised. His positions such as the Horseshoe Road and full tunneling have been examined and thrown out as unrealistic. Eddie is capitulating and that is why he needs some help politically to pretend that he has won.

This is the Hargrove/Lewenza method of negotiating to pretend that one wins when one loses badly. Didn't Henderson tell us about this and the role of the CAW in a column that he published recently.

One would think that Eddie is doing what he is doing because he thinks that he has a "no-lose" case. If more is added to the DRIC road, he claims victory because of the tough position that he took at Council on Monday. That is why he talked and talked and interupted so much. If he gets nothing, he wins too because what he says is that his tough position got us more than a mere at grade expressway.

The only fly in the ointment is that the Senior Levels can pull out costing Windsor billions in investments and thousands of job lost. No politician in this City could ever survive that. That is what Eddie is deathly afraid about right now because he has heard how angry the Senior Levels are at him and fears as well that the Americans will not do anything allowing the Enhancement Project to move forward.

He also heard loud and clear what Dwight Duncan said about no project being undertaken in Windsor at all and that he would be blamed for it since Dwight has said publicly "THE MAYOR IS WRONG. THE MAYOR IS WRONG". And we know how well that Eddie takes blame. I can suspect as well what Eddie was told in private by Sandra and Dwight and that he was not happy about it.

Now you know why Eddie said on Face-to-Face that the City and the Federal Government are getting along so well. He needs leverage against the Province.

Eddie knows that Dwight in the short term would be prepared to pull the plug on the DRIC road as Minister of Finance to destroy Eddie's career. Politics is a tough game isn't it especially when the Province risks becoming a have-not one and there is not a lot of money around. Dwight has many built-in excuses to blame Eddie for the failure.

Of course, just before the Provincial election, Dwight and Sandra would come forward with the money to restart the project in time to be re-elected. Eddie would be long gone politically since his term as Mayor ends before the next Provincial election and our two Cabinet Ministers/ MPP's would be here to save us.

Eddie cannot compromise. He has been backed into a corner because of stupid actions in the past. His support of a full tunnel and then on Greenlink have made it impossible for him to accept a mere refinement of the DRIC road.

If he dares utter the C-word, "compromise," then then he has to worry that a Councillor will hurl obscene vulgarities at him. Why Councillor Lewenza took on Councillor Halberstadt sometime ago over the use of the C-word:

• "Lewenza said Tuesday the use of the word "compromise" suggests the city is poised to settle with DRIC for something less than its official stance -- that the route must be tunnelled.
  
  "This is a billion-dollar file and he is out there saying we want a compromise," Lewenza said. "I challenged him on that."

Chuckle about the comment about the previous position of "full tunneling" in that quotation too.

Eddie might be afraid that Gord would turn on him too as he did with his good buddy in the Three Blind Mice column:

• "Halberstadt and Marra don't have the excuse of being rookies. Halberstadt has been waving the white flag for some time, mouthing off about compromises and trade-offs. This isn't a rummage sale, Al. This is Windsor's fate for the next century and beyond and you sound like someone prepared to auction it to the highest bidder. Not a becoming role."

And yet, Gord used the C-word in his column. But note the interesting way he used the word, compromise, since it would not be Eddie who is trying to compromise.

THE PROVINCE MUST KNUCKLE UNDER TO EDDIE!

Gord has to maintain Eddie's aura of being the fearless and tough leader who made DRIC blink just like Buzz or Senior would do to those automobile companies:

• "But that's where it's headed unless the preem and our MPPs kickstart a compromise."

It is used in the context where DRIC must:

• "come down off your high horses and begin to recognize value in a superior plan. And offer real concessions.

Do you understand then that Eddie has no bargaining position. He is finished. He did it to himself. In the end, it all comes down to an investment in Windsor and 12,000 jobs no matter what the legal position is or what the Star says. Eddie is behind the eight ball because his negotiating strategy failed miserably. It is damage control time.

Monday night was nothing more than theatre for the masses with Eddie and now Gord and the Star Editors begging the Province to intervene to save Eddie's neck. Bravado and spending taxpayer money on an advertising campaign that did not get the number of postcards that Eddie optimistically said that he would get is not helpful either. The fact that the Deputy Mayor of LaSalle walked out on Eddie speaks volumes.

It was, in other words, complete capitulation.

Eddie of course could start a lawsuit in spite of everything. Politicians do crazy things if they think it will get them re-elected or help achieve some other career objective. As Margaret Thatcher's speechwriter wrote:

• "The decisions that really matter to political leaders are those to do with the getting and holding of power. Other decisions may turn out well or ill. They may cost billions of pounds or hundreds of lives, but for enlisted politicians those decisions are secondary. What matters to them is: will I still be here after this?"

What would the lawsuit be? Why if I did not know any better I would say that it would be a variation of what David Estrin did in Hamilton where he was acting as outside counsel:

• "The city is suing the civil servants and four former federal cabinet ministers for $75 million, charging the public servants illegally used the Canadian Environmental Assessment Act (CEAA) in 1999 to stop or delay the Red Hill Creek Expressway."

The one group in all of this who is being very quiet and merely sitting by watching it play out is the Ambassador Bridge Company. As Dan Stamper said:

• "We continue to review our legal opportunities. I'm not going to talk about how we will challenge or if we will challenge. We are just monitoring what they are doing, telling people what's wrong with what they are doing and see how it adds up."

The irony of all this is that Eddie may actually start a lawsuit to stop DRIC and all that happens is that the Bridge Company continues on to get its permits to build its Enhancement Project.