Eddie's Uncompromising Compromise Position
For a Mayor who does everything with care and if there is a concern, will take a very conservative approach, the continued retention of the Gowlings law firm made little sense to me at first blush.
It would have been very easy for Eddie out of an “abundance of caution” to remove the file from David Estrin and give it to another law firm based on the US Appeals Court decision that there are some conflicts that cannot be waived.
Instead we saw this in the Star:
- “Windsor is keeping Toronto environmental lawyer David Estrin as its legal expert on border issues, despite a lawsuit by the Ambassador Bridge's ownership claiming he and his law firm have a conflict of interest…
"Absolutely, he is working for us right now -- on all files," said Francis afterwards.”
The most obvious reason for not changing law firms is because of Estin’s expertise. However, he is not the only lawyer in the Province that does environmental law. If he is removed down the road from the file, then the City is in worse trouble isn’t it.
No, there has to be more than that. The answer it seems to me is that Eddie and Estrin have to be joined at the hip on this matter. They must have developed a strategy together and they totally depend on each other for the carrying out of that strategy.
I am sure that Eddie does not dare move forward without Estrin’s blessing on everything that he is doing so that Estrin can be blamed if something goes wrong. I am sure that Estrin is well aware of that fact as is every lawyer who takes on a big organization as a client. The outside lawyer is the scape-goat.
What could their strategy be? If my BLOG the other day was correct, than Eddie’s objective is to get as much possible money as he possibly can out of the Senior Level Governments. He just needs a strategy for accomplishing that. We are talking about sums in excess of $100 million I am sure. That has to be where Estrin came in. Take a look at what I wrote before in another BLOG and tell me if you think I am wrong:
- “I do not think that I'm that far off the mark in what I think about the Mayor's campaign for Greenlink. I happened to recall something that I read about a controversy in Hamilton where that City sued the Federal Government over an Environmental Assessment:
"the Hamilton municipal government is accusing 65 federal government staff of "deliberately and unlawfully" using their public office to harm the city by participating in an environmental assessment of a controversial city expressway. 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 lawsuit says "the defendants abused their public office by engaging in targeted malice towards the City's completion of the Expressway" and utilized environmental assessment "in an unprecedented, illegal and unconstitutional manner in order to achieve that objective."
The formal statement of claim filed in court by David Estrin of Gowling Lafleur Henderson also says "the defendants knew, when they determined to use their public office to stop the City completing the Expressway, that the City would be harmed in the result..."
The city openly admits that its aim is to achieve an out-of-court settlement which would transfer tens of millions of dollars from the federal government to municipal coffers."
I saw in a news story in March, 2008 that:
"Councillors have voted to continue a controversial lawsuit against Ottawa involving the building of the Red Hill Valley Parkway.
It has also removed a cap on legal costs plus decided to keep the costs from public view until the suit's end...
Councillor Brad Clark, who supported keeping the lawsuit going, called it "the right thing to do" as an effort to keep pressure on Ottawa to settle. He wasn't bothered by removal of the cap or keeping costs from the public until the suit was over. Legal costs have been estimated at $243,000 since 2004."
Did Eddie/Estrin develop a strategy similar to that which was undertaken in Hamilton “to keep pressure on Ottawa to settle.”
In Hamilton, the way to keep the pressure on was to start a lawsuit against the Federal Government. Why else did Henderson write what he did recently about Estrin in his column:
- "Apart from the power of public opinion, Windsor is left with but one weapon in this fight, David Estrin, the guy who wrote the book on environmental law in Ontario.
But what a weapon."
But you may say, properly of course, all that Eddie has done here is threatened a lawsuit and not actually started one. And you are correct.
Good litigation lawyers understand that quite often one wins a lawsuit by using the system to one’s advantage. That does not mean that winning means a Court decision. In fact, it may well be the worst possible thing to happen to have a Judge make a decision. It may very well be that the best decision, as the Hamilton Councillor said, is to keep “the lawsuit going... as an effort to keep pressure on Ottawa to settle.” He was not looking for a judicial decision but a settlement out of Ottawa.
Eddie likes to threaten lawsuits but in my opinion he is afraid to start one. Councillor Valentinis said that nothing would happen for months anyway on John Fairley’s interview program.
If Eddie really wanted one, we would have known about David Estrin’s opinion that Eddie asked for months ago. If Eddie started a lawsuit, guess who would be the star witness… the Mayor himself! He would be the one grilled for days by lawyers on the other side, something that we know the Mayor does not like. Just ask the pesky environmentalist or Dan Stamper.
Instead then, the Eddie/Estrin strategy has to be to stall. Stall by starting a lawsuit or stall by using the Schwartz Report, full tunneling and Greenlink… what is the difference? Stalling is stalling. Pressure is being put on isn’t it but at no personal risk of cross-examination of the Mayor. And Eddie also holds a weapon because after all these years of stalling, he may well still litigate to stall even longer.
The underlying assumption has to be that at some point the City’s opponents will give in. No matter how obnoxious Eddie/Estrin are, no matter what they do and and say, at the right time whenever that is, there will be a settlement because of the self-interest of the opponents. At that time, all will be forgiven and forgotten. And Estrin's fees will be re-imbursed to the City too!
In the Bridge Company vs. Estrin lawsuit as an example, I would expect mountains of documents, numerous affidavits, weeks of cross-examination, motions, appeals and who knows what else to keep that lawsuit going on as long as possible. At the appropriate time, the expectation I am sure is that the border crossing issue will have been resolved and no one will want to carry on with this peripheral action. Everyone will walk away from it.
In the same way, on the border file, the expectation is that the City’s opponents will hold their nose and do a deal. It’s all business don’t you know with nothing personal. Wouldn’t it be better for the Senior Levels who supposedly want a new crossing to pay Eddie a few million dollars so that he will go away? That amount can be buried in soft costs for the project which the P3 investor will pick up anyway.
That seems to be the approach in Hamilton where Estrin is counsel. Start a lawsuit to get money. Why not something similar in Windsor too?
As I said in my earlier BLOG, there is a risk that Eddie may be pushing too hard and may get the Senior Levels' backs up such that they might walk away with their 15,000 jobs with them. Or Eddie may now know that he is in big trouble with the DRIC road. That is where the Eminence Greasie comes in. It does not matter the reason. There is no point in risking all when a nice Compromise--- the “C-word”---can be achieved to accomplish the objectives of everyone, especially the Mayor.
So we can see how Eddie is backpedaling as quickly as possible and trying desperately to pretend that he is not. In fact the EH News story about the mayors’ meeting is supportive of what I am saying
- “Mayor Francis Extends Olive Branch To Regional Counterparts”
Today Windsor Mayor Eddie Francis extended an olive branch to his counterparts in Essex County by asking them to set aside their differences and work together to attract jobs to the region.”
Oh my Lord. Eddie compromising. Well, sort of but not really. How is that to be done. The Star told us:
- “McNamara said county governments may be willing to contribute to an city-county economic investment fund, such as the $100-million plan outlined earlier this year by Francis. The plan called for $30 million from the city, matching funds from the county and the balance from other sources to spend on luring new investors or servicing industrial parks.
"I don't see that as problem," McNamara said. "It's a pool of dollars that can be drawn from. It doesn't mean you spend it tomorrow, but it's something we know is available. The real benefit is job creation for the region. Put a dollar in, get a dollar out."
"It's only spent if we are attracting jobs or investment," he said. "It can give us an opportunity to at least compete."
Of course, the canal concept is all part of this so that it can be an excuse why the Senior Levels can give money to Windsor if an excuse is needed. It is around this time when Dave Cooke should have his report coming out telling us how much money will be needed for infrastructure.
Infrastructure is the way to create jobs today isn’t and the new Federal Minister of Transportation and Infrastructure, Mr. Baird, has $30 billion of it to give away. (His counterpart in the Province also has a few billion that he has to get rid of as well to create jobs.) What’s a small percentage of that vast sum, a few hundred million dollars, for the City of Windsor for such an important border crossing.
We are the border crossing host after all and it is only good manners to bring a gift for the host when you come to the party.
So Eddie helps the Minister with his new border crossing, his Transportation hat and gets some infrastructure money for jobs from the Minister’s Infrastructure hat. It’s a nice trade-off.
Compromises all around with the Feds, the Province and the County. Who in Windsor will dare complain when the Star and Henderson crown Eddie as our Mayoral genius and Saviour right before the next Mayoral election. Who will dare let his/her voice call out that everything that Eddie is doing now is contrary to what he has said before when he was standing up for Windsor’s quality of life. Who would listen? Who would care?
If the County thinks that they are going to get any of the money out of it then they are sadly mistaken. That money is for Windsor and for whatever Eddie’s agenda is. Eddie won’t control it on its face. The WEDC, who can’t even find any brochures when they make their trips overseas, will be in charge. Matt Fischer served his purpose didn’t he by doing whatever it is that he was supposed to do for a year or so and then was terminated. Now the real reason for the WEDC is becoming clearer.
- "Our board took all the advice and experience that he had, and tried to use that to its maximum potential said Dr. Albert Schumacher. "We're ready for other ideas and ready to move in different directions."
Who would be the ideal person to replace him:
- “The WEDC is immediately launching a national search for a new CEO. Schumacher said he hopes to have a new person in the position in six months.
"One of the things that would be great to have is someone who has had private sector business experience," Schumacher said. "Also somebody who has had experience dealing with senior levels of government in getting things."
There is no doubt that the money will be going into Eddie’s Jobs Today Program. Why else do you think it was mentioned in the Star story. In case you have forgotten what that program is, here are some excerpts from Eddie's State of the City Speech:
- “I call it our Jobs Today Program…
Jobs Today is an initial proposal. A set of initiatives to help our Economic Development Commission. To help our community attract jobs. To keep jobs...
The first part of this program, is a new Economic Development Investment Fund. A fund that will provide direct investment into smart projects that leverage our local strengths, and create jobs…
The federal money is there. The very reason the National Community Development Fund was established by the federal government was to help communities like ours.
We need those dollars. We need that assistance.
Thanks to our city’s prudent financial management over the past four years, we are in a position to make this happen – by putting existing money on the tab.
I will also be asking City Council to make a historic, one-time $30 million dollar investment from existing sources to kick-start this fund.
Kitchener needed a ten-year tax levy to finance their fund. Our strong financial position means we can do this without new taxes, and without new debt…
Proposed projects must…help achieve the strategic priorities within the sectors developed by the Economic Development Commission at its recent summit.
We will need the help of our Development Commission to establish detailed criteria related to accessing money from the fund, and to help ensure that these taxpayer dollars are being used as effectively and efficiently as possible. I want to thank the Board and the Commission staff for work already done and encourage them to be actively engaged during this critical transition and renewal time in our city…
Strategic investments by government can work. One need look no further than to the Ontario Automotive Investment Strategy. That strategic investment of $500 million dollars leveraged more that $7 billion dollars in new investments, and anchored thousands of high-value jobs.
In that case, every $100 million dollars invested leveraged an additional $1.3 billion dollars.”
Let the City struggle. It doesn’t matter. We don’t need to spend money on roads and sewers but rather we need to save money so we can put in this cash into the Jobs Today fund. Leverage that $30 million to get more from the County and the Senior Levels, much more. Hold the region hostage by stalling even though 15,000 jobs are on the line and could be lost if the Senior Levels pullout. Rewrite history and then back off when appropriate to do so. That is the chance that our Mayor is prepared to take. Flip-flop on positions… who will remember that when all of those jobs are announced.
It was a pretty good plan by David and Eddie. However, if I could see it, and I am a mere BLOGGER, then the Government people who were involved with our Mayor every day would have known this a long time ago. They would not be surprised.
There is no Compromise taking place. There could never be one. All of this is all part of Eddie's PLAN. He has not compromised one iota nor will he. Nor can he. He has planned this out and he is absolutely right in what he is doing, at least in his own mind.
Eddie may not have considered a couple of eventualities that could ruin his plans. After all, no one can factor in everything. The first is that John Baird will become the Minister. He has a reputation of doing what he thinks is right no matter what his bureaucrats may want. Secondly, there is the Bridge Company who want to build their Enhancement Project contrary to what Governments assumed all the way along.
As Deep Throat said, we will just have to watch the play unfold.