Thoughts and Opinions On Today's Important Issues

Friday, September 19, 2008

Canadian Interparliamentary Group Supports Ambassador Bridge Project

There is no other explanation that I can make that makes any sense to me whatsoever. They cannot be supporting a DRIC bridge when you read what they have said.

What is it about politicians? Taxpayers on both sides of the border will be spending about $60 million on the DRIC process by the time it is done. They keep saying that decisions cannot be made until the process is completed. Their answer it is that they must “respect the process.”

And then what could they do?

They DISRESPECT the process!

I am not sure I understand why they make it so easy for those who want to attack the bona fides of the DRIC process and thereby delay the resolution of the border issue for another decade. Could it be that the politicians really know that there is no need to do anything in our region but do not have the guts to say it. After all, they would look like fools for spending all that money when the Ambassador Bridge Company has solved the problem for them.

Tell me what you think of this story. The only answer that I can think of is that the politicians really do get it, they really do understand that there is no need to spend billions of dollars at this border crossing when traffic volumes are down and are not expected to increase dramatically for years.

The only explanation that I can make that makes any sense to me is what the politicians are saying and in very circumspect language is to let the Enhancement Project go forward.

Here are the relevant excerpts:
  • Canadian Input for New U.S. Border Plan
    Jerry Grafstein and Rob Merrifield have been working with Louise Slaughter to devise a strategy for the next U.S. administration.
    By Jeff Davis

    Democrats and Republicans are working together to draw up a new Canada-U.S. border management plan for the incoming American administration, and have asked Canadian politicians for their input after years of poor management following 9/11.

    Work on a new border plan has begun at the request of the speaker of the U.S. Congress, California Democrat Nancy Pelosi.

    The Canadian point men on the project are the co-chairs of the Canada-United States Inter-Parliamentary Group: Conservative MP Rob Merrifield and Liberal Senator Jerry Grafstein.

    The pair have spent much of the summer south of the border, attending the various legislative councils held each summer across the United States, in addition to the Democratic and Republican national conventions. At those meetings they have continually pressed Canada's role in a prosperous American economy, including the importance of a hassle-free border that facilitates trade, rather than hindering it.

    Messrs. Merrifield and Grafstein said the decision to have Canadian and American officials devise a new border plan took off after they met with Ms. Pelosi in Washington, D.C., in April.

    Mr. Grafstein said Ms. Pelosi "understood the Canadian issues" and got behind the idea of a new bipartisan plan for the border, developed in co-operation with Canadian politicians. The plan will be presented to Ms. Pelosi, who is expected to pass it onto the new administration regardless of its political stripe.

    Ms. Pelosi has delegated the leadership of the project to Democratic New York Congresswoman Louise Slaughter, who has been working closely with Messrs. Merrifield and Grafstein. At last week's Democratic National Convention, Ms. Slaughter arranged a series of meetings with top Democrats on the issue for the visiting Canadians.

    "[Ms. Slaughter] and I have been charged by Nancy Pelosi to put together a group to deal with border issues, and I do think there is an opportunity to have a re-examination of how the border has thickened and to [find] an appropriate position moving forward," Mr. Merrifield said from Denver last week. "On the Republican and Democratic sides both, there are some serious concerns."

    Mr. Grafstein said this is a rare and valuable opportunity to get Canadian perspectives into the new plan at the ground floor.

    "This is the first time we've actually had an opportunity to bilaterally deal with border issues, rather than one country doing something unilaterally," he said. "That's very positive."

    Messrs. Merrifield and Grafstein predicted that the plan will make an impression regardless of who wins the American presidency.

    "I believe there is an opportunity with the new administration, whether it's McCain or Obama, and we're working very hard to make sure that happens," said Mr. Merrifield. "I believe cool heads will prevail with trade. Americans are free traders by nature."

    The border plan will be discussed further later this month is Washington, D.C., when Canadian and American legislators will convene for the annual meeting of the Canada-U.S. Border Alliance.

    Mr. Grafstein said he is also pushing for a visit by Ms. Slaughter and other American legislators to Ottawa in late October or early November to discuss the plan. Among the invitees to this northern get-together is former Democratic presidential hopeful Hillary Clinton.

    "I think [the border plan] will be a tremendous influence," said Mr. Grafstein. "When the speaker of the House asks for a plan to be implemented by the new administration, you should take that very seriously. And we do…"

    Canadian Suggestions So Far

    At the request of his American allies, Mr. Grafstein has drawn up a series of preliminary recommendations about what can be done to achieve a better-managed border.

    A letter, containing eight points, was prepared at the request of Republican Senator and former governor of Ohio George Voinovich on July 31 and later passed to Ms. Slaughter.

    Mr. Grafstein's recommendations touch on points that would ease the flow of both people and goods across the border, and apply to air travel, trucking regulations and infrastructure.

    To address trucking snags, he recommends lower inspection rates for members of trusted-shipper programs, such as the Free and Secure Trade (FAST) system, and that an agreement be put in place so "that rail and truck cargo inspected, cleared and secured at a Canadian port should not be subject to further inspections at the U.S. border…"

    In addition, Mr. Grafstein requests U.S. authorities address the problem of understaffing at border crossings, with the assertion that major border crossings are lacking as much as 40 per cent of their required American staff.

    He also asks for "continued U.S. priority attention" to the Detroit River International Crossing, where the Ambassador Bridge now connects Detroit, Michigan with Windsor, Ontario. This bridge currently carries some 25 per cent of total Canadian-American trade. To cope with congestion, Mr. Grafstein encourages his American counterparts to proceed with the construction of a second bridge or tunnel. "

In passing, someone from Transport Canada should tell Senator Grafstein that he needs to update his briefing book. DRTP and its truck tunnel is dead.

To be direct about it, this is another stupid move by the Canadian Government. In effect, what they are trying to do is circumvent the White House. President Bush rebuffed Prime Minister Harper at the SPP meeting over the border. Senator McCain has to be furious that effectively the Conservatives do not believe that he will be the President. And how will Senator Obama ever forget NAFTA-gate!

It would appear that Canada's Ultra Secret Playbook on how to deal with the Americans is being used. Clearly, Ambassador Wilson has made the decision that the Democrats will win Congress so that it doesn't matter who is President. Accordingly, the Canadian strategy is to do an end run by working through the Democratic Congress, especially by working through legislative committees to get the approvals. Why else is there a focus on House Speaker, California Democrat Nancy Pelosi.

I wonder if the Ambassador has forgotten that no bridge can be built without a Presidential Permit!

What can we take from the Canadians' remarks. We can say hallelujah that they have finally understood that the issue is not lanes across the River but Customs. The consequence of what they are saying when they talk about doing customs clearance away from the border is that effectively we will have a virtually invisible border and trucks will not have to stop at a Customs booth for an inspection.

If the booths are fully staffed at all relevant times, then effectively there is no longer a border and no longer tie ups. On that basis then, why do billions have to be spent on a new DRIC crossing at Windsor/Detroit?

It is clear that the Canadians finally understand that and are trying to convince the Americans of it as well. The only conclusion that I can draw is that the second bridge that they are talking about is the Ambassador Bridge Enhancement Project because a new third lane is needed in each direction in order to allow the pre-approved vehicles to cross over the river in a smooth and quick fashion.

Their comment makes an absolute mockery of the need to have 15 or 16 lanes across the River as the FHWA representative said in front of the Cropsey hearings.

The Canadians do not dare dismiss DRIC because that will create all kinds of political issues. However, the gist of what they are saying can only lead to the conclusion that the Canadian Government is looking for a way out and a way to save face.

Someone should suggest that Canada needs to deal with the non-tariff barriers that could impact our trade with United States rather than worrying about the Ambassador Bridge to make it a symbol of Canadian stupidity. It appears to me that the real "thickening" around the border issue may be the brains of certain people.

Estrin Legal Fees Refund Requested

Does David Estrin still act on behalf of the City of Windsor or has he been removed or did he resign from the file as a result of the Court of Appeals decision in the United States that allowed the Ambassador Bridge to continue on with its lawsuit against him and his firm.

It is not just an academic question as I shall set out in this BLOG. In fact, if I am right in what I am suggesting, it may help solve Windsor's deficit, at least for the short term.

For mathematical ease, let’s assume that there are 200,000 people living in the City of Windsor. Let’s also assume that the total fees charged by David Estrin including legal and consulting fees for all the work that he has done for the City total about $5 million. A quick division would show that I have contributed $25 for those costs. I want my money back!

It looks like this might be litigation week with my BLOGs. I have already Blogged about the concerns that I have with the Heritage lawsuit that may come. Nevermind, the massive lawsuits that may start over DRIC and the Enhancement Project that could last a decade or more if past history is a guide to the future. We should not forget other little spats like the Interim Control and Demolition Bylaws that prevent the tearing down of the homes on Indian Road or possible anticompetitive activities with respect to the Tunnel. By the time this is done, the only limitation will be the imagination of litigation counsel.

Let us come back however to the lawsuit started by the Bridge Company against David Estrin and his law firm with respect to his representation of the City. No matter what, it has to be embarrassing for the firm, one of the largest in Canada, and for its head, Scott Jolliffe, who was the Chair of the Canadian Bar Association Committee on conflicts involving lawyers. The Court decision and the Conflicts Report came out at about the same time.

What is interesting to me is that the firm has effectively admitted that it was negligent. That has to be troubling to clients to be direct. Is their conflicts system so poor that it did not pick up on a 20 year client like the Bridge Company? As I Blogged before:
  • Yet, David Estrin had said in a Star article:

     “Every firm tries its best, but sometimes the conflict screen breaks down," Estrin said.”

  • In its decision, the 6th U.S. Circuit Court of Appeals stated:

     “Estrin claimed to be even more clueless: “Until a few weeks before Centra filed this lawsuit, I was completely unaware that Centra, DIBC, or CTC had retained Gowlings on any other matter.”

  • And it was not just Estrin as the Court stated:

     “For instance, in June 2005, Stamper sought Gowlings’s assistance in certain tax work. Before accepting the work, a Gowlings attorney searched for any potential conflicts of interest but did not identify any. Then again, most importantly for the case at hand, in November 2005, CenTra sought Gowlings’s assistance in creating a $700- to $800-million bond offering by which to finance the twinning of the Ambassador Bridge. Shortly thereafter, Windsor employed Gowlings to help the city oppose the Bridge Plan.”

  • The Trial Court stated:

     “Defendants do not dispute that they entered into a conflict of interest by representing Windsor and Plaintiffs with regards to various parts of the Bridge Plan and that any conflict check that Defendants undertook did not discover the adverse representations.”

It was also said that

  • "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."

I find this so hard to believe. You have to wonder how this possibly could have happened. What makes it even more difficult for Gowlings is that Estrin was part of a group within the firm headed by his partner, David McFadden. He was also the Chair of the Board of DCTC who ran the Tunnel. He would have to know just about everything going on in Windsor about the border and the border file, especially since he is so involved with P3s as well. You would think that he would know what the lawyers in his group were doing too. Yet, not one single person in the entire firm twigged to the fact that there could be a problem.

Estrin made a rather cavalier statement in January, 2007 when this matter was first reported:

  • “Our position is there is no conflict," Estrin said. "When it was brought to our attention we basically fired them as a client.”

Based on the Court of Appeals decision, Estrin’s opinion that “there is no conflict” is now subject to doubt. "Firing" may have been the wrong tactic on their part to use. Note how silent the firm and its lawyers have been since the decision. Oh, have you seen it reported in the Star yet? A year ago they could report on the trial level decision:

  • "A legal attempt by the Ambassador Bridge to stop high-profile Toronto lawyer David Estrin from representing Windsor in its bid to block a twinned span was dismissed Monday by a U.S. District Court judge."

Gowling’s defence was primarily that the Bridge Company was aware of and consented to the conflict by direct waiver or by implication. However, the Court of Appeals made life difficult for Gowlings by stating that some conflicts could never be waived:

  • "There are some conflicts of interest to which a client may not consent. Thus, the district court was only partially correct when it stated “that a client may impliedly waive its consent to an attorney’s conflict of interest,” J.A. at 589 (Order at 6), because it ignored the question of whether Gowlings’s simultaneous and adverse representation of CenTra and Windsor was in fact a conflict to which CenTra could consent. We hold that there is a genuine issue of material fact as to whether Gowlings’s conflict of interest with regards to the Bridge Plan was one to which CenTra could consent...

    the district court broadly stated that a client may consent to a conflict of interest; however, it is not true that all conflicts are consentable. Whether a conflict is consentable depends upon the facts of the case. According to the commentary to Michigan’s Rule 1.7, a conflict is nonconsentable “when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances.”

The Court pointed out, and you ought to consider, dear reader, whether this was one of these "nonconsentable" conflicts:

  • “Then again, most importantly for the case at hand, in November 2005, CenTra sought Gowlings’s assistance in creating a $700- to $800-million bond offering by which to finance the twinning of the Ambassador Bridge. Shortly thereafter, Windsor employed Gowlings to help the city oppose the Bridge Plan… Thus, by September 2006, Gowlings was simultaneously helping CenTra procure funding for the bridge expansion and assisting Windsor in trying to halt the bridge expansion.”

The Court quoted a Centra expert witness who said

  • “CenTra submitted to the district court a declaration from an expert who stated that “I simply do not see how a law firm can offer sound professional service simultaneously to a client it is helping to build a bridge and to a client it is helping to block or delay construction of the bridge. This is not even a close question.”

The Court immediately thereafter held:

  • “Thus, CenTra presented a genuine issue of material fact as to whether this conflict was one to which it was capable of giving consent, and the district court’s grant of summary judgment was erroneous.”

This tells me at least what the Court of Appeals thinks about the factual situation. Based on this comment alone, I do not understand how Estrin can continue acting for the City nor how the City can continue to retain his firm.

Based on this comment as well, then Estrin’s cavalier statement is unacceptable because the firm was in no position to “fire” anyone. They had a legal duty not to act. That is especially so because the Court stated:

  • “If the vague and general information that CenTra possessed regarding prior, different conflicts was enough, then the client would bear the burden of identifying and understanding the full scope of any conflict of interest. It is not the client, however, to whom the various codes of conduct have given this responsibility; “[t]he affirmative duty here rests not with [the clients] but with [the law firm] and its attorneys.”

Based then on the Court of Appeals decision, one can conclude at this stage of the proceedings that:

  • Gowlings was negligent with respect to their conflicts check

  • some conflicts of interest cannot be waived and this case maybe one of them

  • it is the lawyer's function, not the client's, to identify and understand the scope of the e conflict.

In these circumstances, it is obvious that the law firm cannot "fire" one of the parties and carry on with the other. Rather, the firm cannot act for either party.

The Bridge Company will do their own thing with respect to Estrin but what should the City do now that Estrin and Gowlings probably cannot act for us. In fact, it appears to me that Gowlings should never have acted for the City at all if the Court is correct.

Let's step back a bit and ask the question whether Gowlings should have acted for Windsor from day one, even before Eddie Francis was Mayor.

Did their conflicts search show a conflict because the firm also acted for Borealis? If so, how could the firm have acted for the City back in late 2002, early 2003?

Did their conflicts search show a conflict because the firm also acted for DCTC? If so, how could the firm have acted for the City back in late 2002, early 2003?

If the answer is that Gowling's and Estrin should never have acted for the City in the first place, then frankly I want my money back and so should you, dear reader. It is bad enough that there is a conflict with the Bridge Company but there may also have been conflicts with two other border proponents that should have prevented Gowlings from acting for the City of Windsor at all.

If the Court of Appeals is correct and the conflict is non-consentable, then the City should immediately contact Gowlings head, Mr. Jolliffe and ask for a refund of $5 million. In my opinion, the City has no choice but to do so.

There are many questions that have arisen in my mind about this whole matter and what the Council and Mayor did or did not do. After all, our Mayor IS a lawyer and should be very familiar with the process and procedure as well as the law. But that is for another BLOG if the need arises.

It shall be interesting to see what the Mayor and Councillors have to say and what they do. You see, dear reader, they have certain obligations under the Municipal Act that they are required to perform. It is time that they start carrying out their legal duties. If they do not, then citizens have rights too.

Thursday, September 18, 2008

Why Do Some Michigan Democrats Fail The Test

Let us have some fun and do a test in Government 101. Let us see if you could pass the examination by answering this question.

You are a Legislator in Michigan and there is a choice to build an international bridge between Canada and the United States. Which option would you choose:
  • Option A—the Government should finance the entire project on the Michigan side of the river at a cost of at least $1 billion and disrupt the lives of several hundred residents and businesses in Delray, Michigan by forcing them to move while Ontario residents are virtually unscathed

  • Option B—the Government should allow the existing operator of the Ambassador Bridge to build its Enhancement Project at no cost to the Government and the State would also receive about $2 billion of matching funds from the US Federal Government to use with their highway system with no disruption of residents or businesses on either side of the border.

Honestly, I would have thought that the choice is a no-brainer no matter if you are a Republican or a Democrat. Unfortunately, not so.

It seems that the House Democrats are apoplectic because some do not want the Governments to spend $1 billion to build a public bridge or rather a public P3 bridge. Or are they really apoplectic because the Bridge Company wants to do build their Enhancement Project?

One cannot really be too mad at the Democrats because the State is completely unfamiliar, with the odd small exception, with P3 projects. You see, there is no legislation that permits P3s in Michigan, although MDOT people at the Cropsey hearings said that they have spoken with Australians about P3 projects. At least they learned how to put a shrimp on the barbie and drink Foster's lager.

It appears that the House Democrats have few reasoned arguments that they can use so they have chosen a different tactic to support their position. To be blunt, the positions put forward by MDOT at the Cropsey hearings were so bizarre that I too would be embarrassed to back what was being said.

The first blow was an article in the Detroit Free Press by Steve Tobocman, the Democratic majority floor leader in the House. I am certain that some members of his party may be pleased that he is term limited after what he wrote.

To be generous, it was a smear on two members of Congress, one Republican and one Democrat so it was a bipartisan attack, because they dared write “letters to U.S. Secretary of Transportation Mary Peters on the Detroit River International Crossing (DRIC) study.” The July 2007 letter

  • “would demand that Secretary Peters direct the Federal Highway Administration and the Michigan Department of Transportation "to cease participation in the DRIC (study)," while the April and May 2008 joint letters would seek a six-month delay in the study.”

It seems that to a Michigan House Democrat this is virtually sacrilegious because it means that they must support the position of the Ambassador Bridge Company. And that cannot be allowed.

It seems that Representative Tobocman’s attack achieved very little other than to make him look childish so then along came Representative Lee Gonzales. Now he held some hearings on the DRIC matter but he was so unimportant in the scheme of things that the best that the Michigan MDOT Director would do was to send a 10 or 15 minute videotape to his hearings as his contribution.

However, he had to get his licks in because Senator Cropsey did so well in the Michigan Senate. The Representative obviously felt that someone had to stand up for the DRIC project or it would be buried. He was going to be their champion and so he too wrote an opinion piece in that Free Press. It is at the least a little bit more reasonable in tone so I decided to fisk it

Get going on new bridge, jobs

Now more than ever, Michigan's leaders must unite in working toward a common goal: creating and protecting good-paying jobs for our residents. Everyone should understand, then, the ramifications of the state Senate's refusal to move forward on Michigan's largest infrastructure project since the Mackinac Bridge. [The Enhancement Project is not exactly chopped liver. What the Representative has not figured out yet is that this project actually gives to the State billions of Federal dollars that can be used on their road system since they have a huge shortfall in funds available given the needs of their system. It also means that taxpayer money does not have to be spent on the project in the first place.]

Building a second bridge between Detroit and Windsor would create thousands of Michigan jobs and help protect almost a quarter million of them. [This applies no matter which project is chosen]

The House Appropriations Transportation Subcommittee, which I chair, has heard extensive testimony about this project's importance. But the Senate is holding up the Michigan Department of Transportation budget to stop this bridge project. If the Senate keeps stonewalling, all MDOT projects will shut down on Oct. 1 -- including the development of this critical crossing. [The Senate had extensive hearings too and required the presence of the Michigan MDOT Director. The Representative just seems unable to get it through his head that not wanting to waste a billion Michigan taxpayer dollars is not a crime. The crime is wasting that kind of money and not looking at other ways of accomplishing the same objective and getting federal matching funds to spend. Perhaps the Republicans should blame the Democrats for trying to push through a project that makes no sense. It seems to me that stopping MDOT wasting a billion, even if it means shutting down projects temporarily, is in the best interest of taxpayers. All that is happening now is silly pressure tactics in the media by MDOT designed to scare politicians into acting irresponsibly. Hmmmm perhaps the Legislators could counter that tactic by cutting MDOT's budget, say by the amount of the salaries of some MDOT execs!]

We're talking about the busiest commercial border crossing in North America; $122 billion in commerce crosses the bridge annually, supporting about 221,000 Michigan jobs.

Truck traffic between Detroit and Windsor is expected to more than double over the next three decades. The Ambassador Bridge, which opened in 1927, is already congested. According to studies, if capacity is not added, Michigan could lose up to 25,000 jobs by 2035. [I think if I hear the story anymore about traffic doubling I will scream. I hope that the Representative read my BLOG August 29, 2008 “Cropsey 2 The Sequel: The Cow Bridge.” He would find it most instructive about traffic and about the ability of the Bridge Company to handle whatever has been thrown at them. He will also find it instructive that new methods of technology mean that more traffic, more capacity can be handled at the existing border points. If a truck can be cleared in 30 seconds rather than two minutes, capacity has quadrupled without spending a penny.]

Ontario and Michigan are collaborating on the plan to add that capacity -- and vastly improve border security and redundancy in a post-9/11 world by building a second, publicly owned bridge, paid for primarily by future tolls. The Michigan business community stands united in supporting this plan. [The Representative knows very well that the DRIC bridge will have to be subsidized just like some of the other Government bridges in Michigan. If there is fair competition, their tolls will be three to four times higher than that of the Ambassador Bridge. Moreover, even according to the DRIC DEIS, the other border crossings may well have financial problems as the new DRIC bridge takes away so much traffic from them. Taxpayer subsidies will be needed to support those crossings. Again, if he had listened to the Senate Hearings he would have heard that capacity is not the issue i.e. lanes over the river, but the ability to process trucks at the Customs booths in a timely and efficient manner. It seems that the Representative forgot what he was told by the Bridge Company about their plan for security and redundancy at the Ambassador Bridge. ]

GM, Chrysler and Ford back the project, which will keep just-in-time deliveries coming to Michigan's auto plants and save thousands of jobs. The Detroit Regional Chamber supports it, recognizing that the safe and efficient flow of border traffic is necessary for the success of Michigan's workers and businesses. The road builders and construction industry also back it. [Everybody backs it just as everybody would back the Enhancement Project if MDOT had only helped the Bridge Company with their project years ago. MDOT’s position at the Cropsey hearings about why they did nothing was a disgrace. After all, only about a quarter of a billion dollars was spent at the Ambassador Gateway project which was designed specifically to accommodate a second bridge. That MDOT is ignoring this is something that the Representative should have been more concerned about at his hearing.]

L. Brooks Patterson, the Republican Oakland County executive, supports the public bridge; he understands that Michigan's economic development trumps partisan politics. [The Representative should ask L. Brooks why he called Windsor’s Mayor an SOB, why he did not know about the destruction of Delray and if he had a chance again, would he attend such a press conference! As I Blogged, L. Brooks “was under the impression that the Enhancement Project bridge would never be built. For that reason, the DRIC bridge was his second choice as the only viable alternative."]

Only the GOP-led state Senate and the Ambassador Bridge owner stand between Michigan's working families and the good-paying jobs that support them. Certain senators would rather side with the special interests behind the bridge owner, who is pushing an untenable proposal to build another private bridge that will maintain his monopoly but put Michigan's physical and economic security at risk. [Do you see what I mean? If one opposes DRIC, then one is smeared. It is a nice tactic to use when you have no other position. The Representative just seems unable to understand that one might just want to oppose the DRIC project not because one favours that of the Ambassador Bridge but because one does not want to waste $1 billion and give up $2 billion in Federal matching grants. How hard can this be to explain so even a Democratic Representative can understand it?]

No Michigan company or group supports another privately owned bridge that's not accountable. Michigan's citizens deserve a publicly owned bridge that's regularly inspected and assesses reasonable tolls. Besides, our Canadian partners simply won't accept a private bridge. That's a bridge to nowhere. [Wow. Quite a paragraph. Unfortunately, and it is not the Representative’s fault, it seems that MDOT forgot to tell him and almost forgot to tell Senator Cropsey what is in the Agreement between the Bridge Company and the State and Federal Government with respect to the Ambassador Gateway project. It was left to the Bridge Company's Dan Stamper to do that and he destroyed many of the myths surrounding inspection and maintenance. What are “reasonable tolls?” Tolls such as in the Soo where there is not enough money to improve the bridge because tolls are too low. Again he spreads the story about Canada not allowing a private bridge to be built. Who has said that? Let him name names. He cannot.]

This is a bipartisan, binational issue that requires immediate action. Anything less will put Michigan's economic development and thousands of Michigan jobs in serious jeopardy. [This is the only part of what the Representative said that make sense. Perhaps now that he understands a little bit more than what he did before he can work with Senator Cropsey and end DRIC for good!]

Information Overload

There are lots more interesting stories out there, some of them from sources that are harder to find unless you look for them specifically. Here are a few for your consideration.


KDDUCK did an intereting primer for politicians and others about why they should be nice to BLOGGERS

He raised some interesting points about why BLOGS may be a lot more important than some people understand.

I write a political BLOG primarily about local Windsor politics. It does have an interest internationally because I write a lot about our border crossing. However, what shocked me recently is the reach of my BLOG.

I use a site analysis tool that tells me that since I started writing online I have been read by almost 60,500 unique visitors from 136 countries! They have used over 6000 network providers from around the world to get to my BLOGsite.

Obviously, most visitors are from North America but I have had people visit my site from such places as Zimbabwe, Mongolia and Afghanistan.

I just thought that these were some interesting numbers as a follow-up to KDDUCK's BLOG comments. Who would have thought when I first started out...


What do Remo Mancini, the Chair of the Windsor Essex Development Commission, and Lucy Ricardo have in common if Desi got mad at them?? Keep on readin’.

Only a few weeks ago, his group presented their new strategy for developing new business for this area and already he has problems.

Check this out. Pretend that you are an investor who may want to locate a business in this region. What is the first thing that you would do… go to the Commission’s webpage I would guess that most people would start at the top left corner and click on “LOCATE & EXPAND.”

When you do that, what you see on that page? There is a nice story about a company locating here because we are a "centre for trucking, and a powerful international border crossing."

I knew about the border crossing (There sort of is a photograph of the Ambassador Bridge) but I did not know that we were a centre for trucking. Immediately I went to the left-hand side of the page and clicked on “Infrastructure, Transportation.”

Here is what I read:

  • “Detroit-Windsor Crossings

    The Region's infrastructure and access to the U.S. market is second to none... Over 10,000 trucks cross the Ambassador Bridge every day.


    A highly sophisticated trucking industry is well established in the Region, providing competitive rates and numerous alternatives for the cost efficient movement of freight destined for local, national and international markets. Locally more than 50 major trucking firms provide bond, warehousing, forwarding, piggyback, customs clearance, trailer shipping services, and an association with the Detroit commercial trucking zone to ensure full-service capabilities. With the introduction of zero inventory manufacturing by major auto companies, "Just In Time" trucking originated in the Windsor-Essex-Detroit marketplace and remains the standard on which manufacturers rely today."

You see, I am concerned. One of our big new high-tech companies that came in to the region that we are publicizing deals with the trucking industry. 50 trucking companies are located here with all of their employees. Moreover we seem to be pretty pleased over 10,000 trucks crossed the Bridge every day. Clearly, this is one of our advantages.

Yet the position of the City does not seem to have been explained very well. It almost seems as if the Mayor is holding the trucking industry hostage to pressure the Senior Levels. The CP story started off saying about trucks on Dougall Avenue:

  • “The mayor of Windsor is pledging even stricter truck traffic controls in his city unless there's action from the federal and provincial governments. “

The OTA picked up on this saying to CKLW:

  • “The Ontario Trucking Association is slamming the city over its decision to clamp down on truck traffic in Windsor. Mayor Eddie Francis will inform the province that the city plans to examine every route and impose traffic controls, like the left-hand turn ban from Dougall Avenue to the expressway. The association's manager of Government Relations, Doug Switzer, says that sends out a bad signal to potential investors.”

Today's Trucking Magazine wrote recently as well:

  • Trucks blocked from Windsor border shortcut
    WINDSOR, Ont. -- Trucks will be banned from entering westbound E.C. Row Expressway off Dougall Avenue in Windsor, Ont.

    According to the Windsor Star, Mayor Eddie Francis cast the deciding vote himself after a deadlock by city council. He voted to restrict access to trucks because of safety issues related to "trucks collecting in the left-turn lane" and "causing backups."

I can just hear a prospective trucking investor say this to our Development Commission people during their first meeting when we are trying to convince them to locate here:

  • “Remo, You Got a Lot of `Splainin' to Do.”


Someone in the Federal Government needs to do some 'Splainin' on this one too.

Rememeber what the Government said when the Bridge Co. tried to do a deal with Detroit:

  • "Bridge plan faces flak from federal officials;
    Windsor Star 10-27-2005

    The Canada Border Services Agency has no legal authority to post customs agents on the U.S. side of the river as called for in the Ambassador Bridge's plan to create a 200-acre superplaza in Detroit, a federal government spokesman says.

    "We couldn't implement their proposal as it stands," said Alex Swann, a spokesman for Deputy Prime Minister Anne McLellan.

    "From a CBSA perspective, we have no legislative ability to deploy people to the other side of the border," Swann said…

    Swann said McLellan also has security and "redundancy" concerns about creating one Canada-U.S. superplaza to handle both bridge and tunnel traffic under the bridge plan.

    "You need options in terms of entry," Swann said. "We would have concerns about there being just one port of entry at such a vital crossing as Windsor."
  • Feds threaten to sue Detroit: Single control of bridge and tunnel raise concern in Ottawa;
    Windsor Star 11-30-2005

    The Canadian government has threatened Detroit with legal action if it approves the Ambassador bridge's bid to take over the U.S. side of the Windsor-Detroit tunnel.

    Mark Butler, spokesman for Transport Canada, said the single inspection facility proposed by the bridge has raised fears over border security…

    The $30-million US proposal includes the purchase of nearly 30 acres of property from the city to make way for a 100-acre joint Canada-U.S. customs plaza in southwest Detroit that would link bridge and tunnel operations with a dedicated road."

Pretty clear wasn't it. It was a major problem to have US and Canadian Customs in the same spot. Border security and redundancy and all of that for the super-plaza.

Trouble is, the Government was speaking out of the other side of its mouth in Buffalo/Fort Erie and at some other, unnamed border location. There were no problems there about setting up a pilot project for joint Customs facilities. Here is what a United States Government Accountability Office audit just disclosed about the "United States-Canada Shared Border Management Pilot Project" which was started BEFORE the Bridge Co. made its offer:

  • "In December 2004, the United States and Canada announced that the two governments had agreed to move forward with a land preclearance pilot project at the Buffalo, New York-Fort Erie, Ontario Peace Bridge and at one other border crossing site along the northern border, which had not yet been determined…

    The preclearance pilot at the Peace Bridge would involve the relocation of all U.S. border inspection operations for both commercial and passenger traffic from the U.S. side of the border in Buffalo, New York, to the Canadian side of the border in Fort Erie, Ontario. The other preclearance location had not been determined, but would have relocated Canadian border inspection functions to the U.S. side of the border at a different port of entry…

    From 2005 to 2007, the United States and Canada were engaged in negotiations to implement land preclearance at the Buffalo-Fort Erie Peace Bridge ports of entry. However, in April 2007, these negotiations were officially terminated by DHS."

Really, they do! There is absolutely no doubt now in my mind that our Feds came down to Detroit to threaten to ensure that no one but themselves had control over the Tunnel!


Here is what was said on the US side recently in Minutes of a DRIC Joint LAC/LAG Meeting:

  • "The air quality analysis of the DRIC on both sides of the border indicates that mobile sources of pollution are not the major issues—point sources, like refineries and steel plants, are. And with further federal restrictions on diesel engines and fuels, mobile source emissions will be even less of a problem."


Time for a contest. I just could not resist this.

  • "Proposal seeks grist for Mythbusters' mill

    Got any local myths in need of highly publicized shattering?

    The Connecting Windsor-Essex organization is preparing a proposal to invite the Discovery Channel's Mythbusters cast and crew to Windsor to film an episode of their popular program."

Here are some myths that I thought of:

  • Our Mayor and Council know what they are doing
  • Eddie Francis will run for only two terms as Mayor
  • Schwartz Report #1, full tunneling and Greenlink were serious proposals by the City
  • The total cost for the East End Arena will be $64.9 million
  • A canal project will revitalize our downtown
  • Someone really cares about the redevelopment of Sandwich

Here's one myth that has been shattered. Councillor Loopy cannot sell ice to an Eskimo. Remember he stated that:

  • "On a technical basis, we can sell it to anyone with an open mind," said Hatfield."

Obviously not. Not a word from the Councillor since he came back from the AMO meeting. No sales yet. Nothing was closed with the buyer.

I am certain that with your imagination, dear reader, you can come up with a number of interesting myths too!


I trust all of the backoffice people for federal candidates keep to the Election Act rules. We do not want to see something like this happen to a person in Windsor as happened before:

Compliance agreement
This notice is published by the Commissioner of Canada Elections, pursuant to section 521 of the Canada Elections Act, S.C. 2000, c. 9.

On [date], the Commissioner of Canada Elections entered into a compliance agreement with [X], contracting party of the City of Windsor, Ontario, Canada, pursuant to section 517 of the Canada Elections Act.

In this agreement, [X], campaign manager for candidate [Y] in the electoral district of [Z], recognizes having breached paragraph 495(1)(a) of the Canada Elections Act by publishing and
distributing election advertising pamphlets in the electoral district without mention of the authorization of the official agent, contrary to section 320 of the Act.

Prior to the conclusion of the agreement, the Commissioner of Canada Elections took into account that [X] published a correction notice in the local newspaper The Windsor Star.

In summary, the agreement required [X] to
• acknowledge the requirement to indicate the official agent's authorization in all election advertising;
• admit to the truthfulness of the facts and admit responsibility for the acts that constitute the offence; and
• undertake to observe the requirements of the Act and to henceforth respect them.

Commissioner of Canada Elections

Wednesday, September 17, 2008

Let The Investigation Begin



Do you know what the Dunbar Audit of the 400 Building is now called:

  • "Preliminary 400 CHS draft."

It is not even a draft now but a preliminary draft!

Poor Angela Berry, Windsor's Lead Auditor on the 400 Buuilding Audit. Can you imagine the pressure she is under. She has a law firm and KPMG looking over her shoulder all the time. In a recent report to the Audit Committee she wrote these two absolutely conflicting statements:

  1. Administration has been extremely cooperative providing timely support and resources whenever requested.

  2. we identified and have received a significant volume of information comprised of 11 banker boxes of physical records (data) as well as a large volume of soft (electronic) files...

    The 6 boxes of information reviewed to date appears to include many of the project files that we require to conduct much of the planned fieldwork and analysis.

    Other information suggests that the data will be helpful in answering many of the outstanding questions raised by the former City Auditor in his summary of work to date submitted prior to his retirement...

    This information may have a significant impact on previous tentative findings in the project management area...

    There is a significant amount of work that needs to be done which has been compounded by the fact that we have recently received 11 boxes of data as well as a large volume of electronic files"

Come on Angela....who forced you to write that BS about Administration or did you do it to keep your job? Get real. You just got information that Mike Dunbar asked for years ago and never received!

Here was another strange statement she made:

  • "Communicated to CAO and established CAO support for conducting the requisite interviews of City Staff to complete the engagement. "

Why does she need HIS support to do internal audit interviews? He should have no role in this whatsoever.

I read this interesting comment about internal audits from the British Columbia Ministry of Finance that I thought was applicable in Windsor:

  • "The purpose of an internal audit is to:

    --provide comfort to management that operations are well-managed, efficient, and within the bounds of applicable laws, regulations and policies;

    --identify weaknesses in business practices and management systems and recommend improvements; and,

    --identify opportunities to reduce expenditures, increase revenues and better protect government's assets."

We do not need an internal audit in Windsor to take a look at how this City is run. The 400 Building audit fiasco makes it clear. It should be obvious now that Windsor operations are in a mess, there are obvious weaknesses in business practices and we definitely need protection of our assets!

It would be nice for taxpayers to know that the 400 Building project was managed properly since the East End Arena project is also being managed by the City. As I have said before, if the 400 Building project is messed up, then how can we have any confidence whatsoever in the numbers that are being put forward on this $65 million and counting project?

The 400 Building Audit has turned into a comedic farce. No one seems to care that the audit is taking forever to be completed in the first place and that there are excuses after excuses about why it is not being done, excuses that change over time. Moreover, no one seems to be concerned that if the previous Auditor did such a poor job on this audit then one ought to be concerned about what other work that he did.

Even the Ministry of Municipal Affairs does not seen to be concerned about how this City is being run suggesting that we should rely upon a bunch of weak-kneed Councillors as our salvation. Please!

Here is the latest on the 400 Audit from the Star. No one would ever believe this if I wrote a story about it. They would say I made it up. It is too far-fetched:

  • "Officials from the city auditor's office overseeing completion of the audit of the 400 building in City Hall Square say 11 boxes of new information have been turned over by city administration and guessed it will take at least until November before a final report can be completed...

    A report by the city's lead internal auditor Angela Berry to the audit committee last week revealed that "11 banker boxes of physical records as well as a large volume of soft (electronic) files have been turned over" for the new analysis.

    "We have catalogued all of this information and have gone through about half of it in a more detailed review to identify what is relevant," her report said.

    "The six boxes of information reviewed to date appear to include many of the project files that we require to conduct much of the planned fieldwork and analysis."

    Other information she has received answers some of the questions raised by Dunbar in his original report, said Berry in her report."

It completely mystifies me that after all that has gone on that the CAO has not ensured months ago that the City Auditor was provided with all of the relevant documentation and that all of the people that she needed to speak with were immediately put at her disposal. That boxes of documents and electronic files were only released recently suggests gross incompetence on the part of Administration. Or perhaps worse.

Moreover it is shameful disrespect and an insult not only to the Audit group and to Council but to the citizens of this City. Has Administration no respect whatsoever for taxpayers? I cannot believe that a private business for example would be allowed to run this way, one with a budget of over a half a billion dollars.

The CAO, John Skorobohaczhas, has to take the responsibility for this failure on the part of Administration. He gets the big bucks and the buck stops with him.

As for Mr. Zalev, the Chair of the Audit Committee, what is he doing to protect citizens? He appears to be nothing more than a figurehead who has no idea what is going on. The process seems totally out of his control. He has applied no discipline to what is going on and has provided no sanctions to Administration for their delays. Mind you, what can you expect when the Audit Committee was totally invisible on the Windsor Utilities Commission matter.

I asked almost 3 months ago in one of my BLOGs if a Police Investigation is required or if action should be taken under the Municipal Affairs Act to make an inquiry into the affairs of Windsor. Or both! My view has not changed. In fact, I feel even more strongly now that a forensic audit has to be undertaken as well as bringing in the authorities if any wrong-doing is uncovered.

What I said was

  • "The audit of the 400 Building is getting stranger and uglier the more it goes on. It cannot be allowed to continue. The Audit Committee has known for some time that that there are serious matters that need investigation and that could give rise to litigation. It is inexcusable that they have sat on the report for so long with these matters outstanding. I'm disappointed in our Councillors who are members of the Audit Committee that they have not yet released the report a long time ago."

It is always interesting to take a look at a timeline because it puts events into a proper perspective. In this timeline, you will see how this process has been extended to who knows when and you will see all of the different excuses that are being utilized to delay the release of the report. In fact, after one of the meetings, it is not clear that the public will ever see the complete report but only a sanitized version of it.

In other words, we will only see our own whitewashed audit of the 400 Building. We will only be allowed to see what others determine is right and proper for the poor taxpayer to know about.

Remember how this all began... the positive story that we were told. In February, 2006, the Star reported:

  • "Councillors approved a report by an independent consultant who found the building was constructed under budget and filled an important need by bringing several city departments under one roof. "Overall, the assessment was that it was done well" and it met the objectives of the city, said John Skorobohacz, the city's chief administrative officer...

    Skorobohacz said the project came in under budget and the city will have an extra $1 million, based on projected revenues and operating expenses.

    "Because we're paying ourselves, the entire building gets paid in 20, 21 years time," he said."

Keep on reading and there is a lot of it as well so that you will get the full picture

  • 03-05-2008 Release of audit delayed; 2 councillors say they're frustrated

    “Two city councillors who sit on the audit committee -- Bill Marra and Alan Halberstadt -- expressed dismay Tuesday over delays that have kept an audit of the recently constructed 400 City Hall Square government building under wraps.

    "It's been in front of administration and legal for a long time now," Marra said. "We don't have a good explanation for the delay.

    "There is no good excuse, no good response to why this has been delayed, but the reality is it has been. I think a lot of people are anxious to see the results of this."

    On Tuesday, the audit commitee decided behind closed doors to delay the release of the audit for at least another month. City administrators had called for more time to respond to the audit and for city lawyers to go over it to determine what names and details should remain confidential and what details should be made public…

    City administration is being given one final chance to respond to the audit, completed last fall by former city auditor Mike Dunbar and his staff. Dunbar resigned from the city on Dec. 31…

    Helga Reidel, the city's general manager of corporate services, spoke for administration at the meeting, suggesting it would take at least another month -- maybe two -- before a response could be completed and the legal department gets a full look at what should be kept confidential in the report.

    But after the meeting, the city's lead internal auditor Angela Berry vowed that with or without administration or legal response to issues and recommendations in the audit, it will be released at a committee meeting on April 23. Despite ongoing delays, Bailey said there has been no changes made to the report. “

  • 04-24-2008 Ex-auditor says report on building long overdue; City CAO says more time needed

    “Skorobohacz was first given a draft of his audit report in December 2006, and audit committee members have had it in their hands for almost a year, Dunbar said.

    "Ask them why has it taken so long. Certainly the report is not subject to change," Dunbar said. "The public should have the complete report as soon as possible. The complete report tells the whole story -- including questions we could not get answers to -- and the public deserves to see that…"

    Skorobohacz said the ongoing delays in the audit's release are linked to the committee members having concerns that need to be investigated.

    "You have to give some consideration that there were a lot of staff changes both during the time of construction and then when the audit was conducted," he said.

    "With changes in staff you still have to provide opportunity for people to provide comment.

    "I know the audit committee requested a legal opinion with respect to certain issues and that was presented (behind closed doors) to the committee today…"

    The latest delay, after the hour-long audit committee discussion Wednesday behind closed doors, is due to "substantial" new information being handed over last week by city administrators to the city's lead internal auditor, Angela Bailey, that requires her to conduct further investigation…

    "We are not certain of the length of time for the city auditor's office to go through the process," Zalev said.

    "The types of information (provided by administration) are significant in terms of depth and scope.

    Zalev … could not answer why the new information only came forward last week.”

  • 06-25-2008 City audit faces new delay; KPMG to examine results of probe into 400 building

    Accounting firm KPMG will be hired to examine an audit -- kept under wraps for more than a year -- of the construction of the 400 building in City Hall Square.

    The decision made Tuesday by the city's audit committee, following an hour-long closed-door discussion, means the long- awaited audit won't be released to the public for at least several more months.

    "We have to make sure the work is done properly," said Max Zalev, chairman of the audit committee. "In terms of timetables, it's more important to get the process right and make sure the report is supportable…

    It was suggested by Zalev that once the final audit report is released -- in November or December at the earliest -- there will be two versions.

    Due to litigation fears, an in-camera report -- not to be made public -- will be provided to the committee, while the public version is likely not to include potential litigious references or names of certain individuals, he said.

  • 07-02-2008 400 building cost defended

    “Marra said he understands taxpayers are feeling frustrated the audit has not been released, "but the bottom line is it's not complete." He cited several interviews with those close to the project's construction were not included as part of Dunbar's report, including project manager John Micelli, city manager of faculty operations. The former city auditor resigned on Dec. 31.

    "Flaws in the draft audit report were concerning," Marra said. "At the very least things have to be done properly."

    There were several new revelations around the delayed audit Monday, most notably that Mayor Eddie Francis has seen several portions of Dunbar's report. He said it was necessary to review much of the audit to determine whether it should be discussed by council this past spring following an outside legal opinion on its contents.

    Several senior members of city administration have seen the full Dunbar report, while others have only seen parts pertinent to their roles, said Helga Reidel, the city's general manager of corporate services.”

  • 07-30-2008 More scrutiny for secret audit; Under wraps until lawyer, accountants eye contents

    The long-delayed release of the audit of the city's recently constructed 400 building took another turn Tuesday when it was revealed an outside accounting firm and an out-of-town law firm have been hired to analyze the audit before it can be made public.

    The city's audit committee, which has had the audit for more than a year without revealing its contents, will pay up to $15,000 for accounting firm KPMG and $10,000 for legal advice from a Toronto law firm.

    "We have done this to make sure the lead internal auditor (Angela Berry) has all the resources necessary to complete the full report," said Max Zalev, chairman of the audit committee, following a 90- minute discussion behind closed doors.

    "By bringing in this professional horsepower we will have the third-party expertise we need so the report will withstand the scrutiny we expect it will be under by a variety of stakeholders."

    One reason audit committee members believed they needed to call in outside help is because several key city administrators and staff members associated with the 400 project, including project manager John Micelli, have not been interviewed as part of the audit.

    "The real reason for the delay is information the committee and the lead internal auditor has is incomplete," said Zalev. "We need to make sure the final audit report can withstand scrutiny in the public eye and court of law."

    All the extra work and due diligence adds up to at least another 90 to 120 days before the audit could possibly be released, Zalev said.

    "There is a possibility it could go on longer, also a possibility it could take less time," he said. "

    KPMG will help Berry determine what added documents are needed and what additional interviews should take place, while law firm Miller Thompson -- which has municipal and audit expertise -- will play a role in determining which parts of the final audit report should be made public and what should stay secret.”

  • 08-16-2008 Audit full of holes, lawyer argues

    A long-awaited audit of the city's 400 building is so full of holes that it can't be considered an audit at all, a legal adviser told the city's audit committee Friday.

    Andrew Roman said gaps in the report assembled by former city auditor Mike Dunbar are so frequent that it should be considered a draft for a component of an audit to come.

    "It's premature and incomplete ... not a document that's ready for release," Roman said…

    Other gaps in Dunbar's report include missing documents that weren't filed and interviews that have yet to be conducted, Roman said.”

  • 09-05-2008 City wants $354,650 for FOI request

    The City of Windsor says it needs $354,650 from a local taxpayers group to process a freedom of information request.

    WeACT -- and its president Chris Schnurr -- has also been informed in a letter from the city that it will take 11,000 hours of search time to dig up records related to an audit of the 400 City Hall Square building and to a proposed tunnel deal with Detroit. The group has been told it must pay a $177,325 deposit -- 50 per cent of the fee estimate -- before the city will proceed with the FOI request…

    The city has requested a 500-business day extension to comply with the request, according to a Sept. 2 letter sent to Schnurr.

You tell me when we're going to see the report. Do citizens have to wait 500 days and pay $350K? You figure out the reasons and excuses for the delay. The time period keeps being extended from month to month. Now it is November when a sanitized version will be released after it has been picked apart by the outside lawyer and KPMG. The excuses keep changing and new documents are suddenly found and released even though Administration was told that they only had one final chance to respond on to the original Audit Report months ago.

The purpose of everything is to wear out citizens, to expect we will go away and that we will not bother. When we are crushed, then the sanitized Report will be distributed and we will get an "I told you so. There is nothing there. Why were you so upset? It's the usual Naysayers again causing problems."

Mike Dunbar is being made to be the fall guy in this. He's being made to look like a fool. He's being made to look incompetent. He's not.

For around two years, 11 boxes of key data were not provided to the Internal Audit group. How can that possibly be? It is only now that interviews are being undertaken of relevant personnel. How can that possibly be? People outside of the Audit committee, the Mayor and members of Administration, were provided with copies of the Dunbar report but not members of the public? How can that possibly be?

We are told that there is a litigation concern. I have been racking my brains trying to figure out who might sue. Who are the various stakeholders that may scrutinize the report and then start a lawsuit?

I doubt very much that it would be an employee. I thought that the claims of the builder of the building were resolved at Council so it would not be that company.

The only people that I can think of that would be an interested stakeholder, and would have money to start a lawsuit would be one of the tenants in the building, the Federal or Provincial Government, or perhaps St. Clair College who backed out at the last minute. Perhaps an interested party might be one of the contractors that did not get the job if something strange went on. Who knows?

The Star has written Editorial after Editorial on the subject and has gotten nowhere. The best they could do today was write:

  • "It was startling and disconcerting to learn that city administrators only recently sent to the city auditor's office 11 boxes of documents and additional computer files related to the 400 building in City Hall Square...

    Did someone in the auditor's office drop the ball or did administrators refuse, for whatever reason, to throw it to them?"

What a cute play on words by the literary genius. What the Star should have said is that Council must take control of this financial embarrassment and undertake a proper forensic audit of this entire matter. (The Mayor being conflicted since he has already seen a copy of the Dunbar Report). Once that is done and a report issued, then the appropriate action must be taken, including termination of the responsible people, if this process has been mishandled to the detriment of citizens or calling in the Police.

Enough is enough!

More On Freedom of Information

I have a significant concern about whether the City understands how the provisions of the Municipal Freedom of Information Act apply. My concern is based on the comments made in a radio interview by the City Clerk.

Excuse me while we get into the Black Letter Law in this BLOG. After reading some of the statutory language, you will understand why lawyers are so much fun at parties!

On Melanie Deveau’s show on CKLW, the City Clerk talked about the mandatory sections of the Act that would prevent the disclosure of records. I was troubled that she did not refer also to the general principles of the statute which state that “information should be available to the public” and that “necessary exemptions from the right of access should be limited and specific.” I thought that this was important to tell citizens too.

It seemed to me pretty clear that the public had the right to know except in very specific circumstances. After all, I did not want to be one of those Naysayers mentioned by the Mayor who could not make an informed opinion because information was not available to me upon which I could make a judgment.
I wanted to see the City's information too. I did not think that this was too much to ask for.

It seemed so cut and dried when listening to her explanation that I took a look at the Act itself. I must admit that I wasn’t able to find the “mandatory” sections that she was talking about so I wrote to her asking her to set them out for me.

Just so you know, the issue is about the use of the word “shall” or “may” in a statute:

  • “Use of “shall” and “may” in statutes also mirrors common usage; ordinarily “shall” is mandatory and “may” is permissive.”

There is a big difference if a statute says one shall do something as distinct from a provision that states one may do something.

She did not respond but Chuck Scarpelli did on her behalf. He seems to handle most of the MFOI requests so I guess he is the expert. Here are the excerpts from the relevant sections that he set out:

  • Sec 9 (1) A head shall refuse to disclose a record if the disclosure could reasonably be expected to reveal information the institution has received in confidence from…

    10. (1) A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, if the disclosure could reasonably be expected to,

    14. (1) A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except

    (f) if the disclosure does not constitute an unjustified invasion of personal privacy.

    (2) A head, in determining whether a disclosure of personal information constitutes an unjustified invasion of personal privacy, shall consider all the relevant circumstances, including whether,

    (a) the disclosure is desirable for the purpose of subjecting the activities of the institution to public scrutiny; etc etc.

I am certain that you will notice the word “shall” in each of the sections so one ought to agree with the City Clerk’s position that the sections are “mandatory.”

Not so fast, grasshopper. In each of the sections, it is more than just the word “shall” that has to be considered. For example in section 9, a determination has to be made first “if the disclosure could reasonably be expected to reveal information the institution has received in confidence.” If there is no such reasonable expectation, than the document must be produced. In other words it is not an automatic “refusal.” The “refusal” is limited.

The position is similar in section 10. The “refusal” is not automatic and is limited as well.

Section 14 seems a bit more limiting because we’re dealing with “personal information.” However, it is highly unlikely that there would be very many records in what the Mayor called a “commercial” Tunnel deal as an example that would be considered “personal.” Even with section 14, a judgment has to be made and it is not completely mandatory. For example, dealing with whether an invasion of personal privacy is justified or not.

Accordingly, I did not find the mandatory provisions that the City Clerk seemed to be talking about in my interpretation of the Statute and the sections referred to did not disclose in my opinion an automatic refusal either.

However, let us give the Clerk the benefit of the doubt on those sections and agree that they all are “mandatory.” Unfortunately, we cannot stop there. There is another section that applies and this section was not mentioned at all by the in the interview.

  • “Section 16 Exemptions not to apply

    An exemption from disclosure of a record under sections 7, 9, 10, 11, 13 and 14 does not apply if a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption. “

This section is essential in the interpretation of the statute and in what documents should be revealed. It requires that a judgment be made by the City. It is not all cut and dried as far as I am concerned.

In the sections referred to by Mr. Scarpelli, sections 9, 10 and 14, there is an override from exemption if “a compelling public interest… outweighs the purpose of the exemption.”

Was that judgment made by the City? If not,why not? If the City Clerk did not mention it, perhaps she did not know about the section and it was not considered when dealing with the WeACT application. There is no doubt that there is a compelling public interest in the audit and in the Tunnel deal. It would clearly outweigh any reason not to disclose.

In the circumstances, if this section was not considered, then WeACT was not treated properly and in accordance with the statute. There is no evidence that the Clerk gave during her interview that section 16 was considered at all or that there was a realization that the sections quoted were not mandatory.

If these are the facts, then in my opinion the City has no justification for failing to disclose the documents. I’m certain that an arrangement can be made to narrow the scope and reduce the amount of photocopying to make this matter manageable so that the documents can be revealed immediately.

Accordingly, Mr. Schnurr can reveal them to citizens soon. If he cannot, then Daryl Newcombe of EH-News can since he asked for 2 specific dosuments. I wonder if City Hall will try and and block access to him!

Tuesday, September 16, 2008

Boo Birds Are Out Already

As a reader wrote to me. The abuse starts now.

I am surprised it took so long for Greg Heil to be smeared. After all, the original story was in the Star on Friday. Mind you, the "abuse" story was on Page 4 of the Monday Star so few will read the nasty comments made against him.

There is that “dismiss” word again when our Mayor does not like something:
  • “Mayor Eddie Francis dismissed the resignation as manufacturing an issue and said he was not clear what motivated Heil's decision.

    "At the end of the day, a volunteer can do what a volunteer wants to do," said Francis. "I would thank him for his services to the community and wish him luck."

Who said manufacturing has been lost in this City! What a smarmy response. I guess it takes the Mayor to know what “manufacturing an issue” is since he is so good at it, having created many already in his City during his term.

It should be obvious even to Eddie what motivated Heil since he said so clearly. He did not want to be caught up in litigation because the Heritage Committee report was prepared

  • “by an outside consultant with no connection to the heritage committee.”

He did not want to be associated with

  • “the Olde Sandwich Towne heritage study [which] is being used as a weapon in council's fight to stop the Ambassador Bridge from building a twin span.”

I thought that was pretty clear. Why didn't the Mayor deny those allegations? It would have been so easy to do that instead of using ad hominem arguments and name-calling. That was not worthy of a civic leader.

Eddie's dismissal of a volunteer brings back the memory of John Middleton and how he was treated when he was booted off as Chair of his Committee. I do not think he has ever been told what he did wrong.

Ms. Cuderman is quoted again. She is quite familiar with the Heritage process in Windsor. As I Blogged before about her McGregor-Cowan house on Sandwich Street:

  • “it's the one that received money from the City as a heritage building:

     $87,900 for a loan/mortgage
     $17, 630 grant for a cedar roof (I was not sure if she also got a requested interest free loan in the amount of $5,876)
     she was requesting "25% of the cost of restoring the main entrance door and sidelights of the house.
     She had in the past appeared as well " before Council to speak in support of the use of the Ontario Heritage Property Tax Relief Program as a pilot project to assist the owners of designated heritage properties in Sandwich."

One matter still requires clarification. The Star claimed that she was living in the 400 block of Indian Road. If true, since Ms. Cuderman sits on the Sandwich Redevelopment Committee, I do not understand this comment

  • "To me it's not an issue over the bridge. It's what's best for Sandwich."

As I Blogged before, while she is entitled to her opinion as is any citizen:

  • “… isn't she now just a NIMBY-type merely protecting her monetary interests and not looking out necessarily for what is good for Windsor or Sandwich in particular? Is she also in a conflict as an Indian Road resident and as a member of the Sandwich Heritage Conservation Task Force?”

I do not know the answer to those questions.

As for Councillor Jones, what a mean-spirited, nasty comment about Heil who was a member of and Chair of the Heritage Committee for a decade. His comments along with that of the Mayor are certainly words of encouragement for people to spend their time as volunteers on City committees:

  • "Since he came to the committee he has been difficult to get along with," said Jones. "All committee members had run-ins with him. I welcome his resignation."

If Mr. Heil was such a poor Chair, why didn't the Councillor do something a long time before to ensure that he was not the Chair.

It won't matter. Mr. Heil will not need to hire a lawyer to explain the purposes of the Report. He was smart enough to understand what it was all about. I wonder if the Mayor and Councillors in the future might envy him since he is out of this mess.

While the Boo Birds did not know why Heil resigned, the many readers who commented on the Star story Friday certainly knew and were not surprised at all. They should check out some of the thoughtful responses.

Heritage Lawsuit

If the Bridge Company sues the City of Windsor for bad faith in how the City has treated them and if they are successful in a judgment, I would expect that the damages claim including punitive damages would be gigantic.

I trust that the Company would take pity on the taxpayers at Windsor. After all, we did not appoint Eddie as the Voice of Council. It is not our fault if the Councillors have forgotten what their legal obligations under the Municipal Act are.

If the Company sought cash for their claim, there is no doubt that our taxes could rise dramatically since insurance might not be available if the coverage is for "negligence" only. Perhaps instead they could be convinced instead to take over
  • the City’s interest in the Tunnel because the City certainly has no idea how to run or,
  • perhaps they could take over the 400 Building so that we could finally see the Audit of it or,
  • perhaps they might seize the East End Arena so that they could get a building that will ultimately cost $ (fill in the blank with your guess) million but which the City would claim is right on budget.

Or, if we are really lucky, they will take all those assets so they will no longer be a burden on taxpayers.

I mention this because of the shocking resignation by former Chair of the Heritage Committee, Greg Heil. I happened to see the story on the online Windsor Star very late on Thursday evening. To put it mildly, I almost fell out of my chair when I read the story.

  • “The longtime chairman of the city's heritage committee has resigned, saying the Olde Sandwich Towne heritage study is being used as a weapon in council's fight to stop the Ambassador Bridge from building a twin span.

    "I have a grave concern about potential political influences tainting the outcome of this study, which may jeopardize the heritage welfare of Sandwich," Greg Heil said in his resignation letter.

    I'm also concerned about the likely vigorous litigious fallout to which I could find myself personally exposed if I participate…

    "I feel it was tainted by ulterior motives, tainted by the role of the bridge company."

    Heil said the city should be consulting with senior government in its fight with the bridge, "not using heritage as a way to stall off the bridge and create tremendous inconvenience for residents of Sandwich."

What he said frankly is hardly a surprise. The fact that someone in a position of knowledge had the guts, the courage and yes, the honour to do so in this City was.

In case someone may think that Mr. Heil is a friend of the Bridge Company, I can tell you from personal experience that he is not. He and I have exchanged some very interesting e-mails over some of the things I have written. Accordingly, his charge of “political influences” has to be taken extremely seriously.

In passing, the timing of the Report is very interesting as well. Wasn’t last week the weekend of the Olde Sandwich Towne Festival?

  • “The 19th Olde Sandwich Towne Festival has a lot to celebrate this year -- not the least of which is winning the latest battle to preserve the historic area from wrecking crews building the next border crossing.”

Why did I start off this BLOG about litigation? Why is Mr. Heil concerned about litigation? Tell me once you have read what I am Blogging below if you see a pattern emerging that the lawyers for the Bridge Company can use in any litigation. I do take some comfort in my perspective after this comment by Councillor Halberstadt on the Interim Control and Demolition Bylaws:

  • “There are those who insist that the freeze is in effect for the sole purpose of blocking attempts by the Ambassador Bridge to build a new plaza to provide access to a second span. I would not argue that theory. Certainly, by providing exemptions to Flood and Bushman, more precedents could be set.”

Let’s go right back to the first Schwartz Report. I still remember Sam on stage at the Cleary meeting saying that he was independent and that he had his reputation to protect. To be honest, that gave me a great deal of comfort at the time. However, that was shattered when I read this story in the Windsor Star:

  • Estrin drafted $2.2M plan:
    Windsor Star 08-25-2005

    A document obtained by The Star in which Estrin outlined his border "work plan and budget" shows how he originally planned to tackle the province and federal governments' "nine-point plan" -- which focused on making E.C. Row Expressway a border truck route -- and fight off proposals by the Ambassador Bridge and DRTP.

    He told council his hiring of a transportation planner and government/media relations expert were vital to help council achieve its objectives.

    The transportation expert would come up with a traffic bypass plan, he told them, while the media expert was needed to ensure council's position was well presented locally, provincially and federally, according to the document.

    A few weeks later, council approved the plan and retained Estrin for $50,000.

    Estrin soon after hired New York traffic expert Sam Schwartz to come up with a bypass plan…”

What conclusion would you draw from that story? Was Mr. Schwartz directed to come up with the result that he did? If so, was this a step taken by the City to block the Ambassador Bridge?

Let’s go forward to October, 2006 and the Council meeting about the Olde Sandwich Towne Community Planning Study. Consider this comment by one of the delegations as shown in the Minutes:

  • “…resident, appears before Council as a member of the Olde Sandwich Towne Community Task Force, requesting that consideration of the Olde Sandwich Towne Community Planning Study be deferred, as she personally feels that process was not properly followed in terms of notification and receipt of a draft copy of the Planning Study, and concludes by suggesting that the Study being presented before Council is highly influenced by Administration and not a true product of the Task Force.”
I remember her being "dismissed" by a certain Councillor who should have known better. She also said to end her speech, something that Mr. Heil echoed in his remarks:
  • "I know it won't matter what I say and I don't care. This report is not mine it's an administrative report. One thing I learned though: don't get involved. It's not our city anymore. All we are is windowdressing. Everything has been planned for us and if we don't like it, too. bad."

Take a look at my BLOG “Monday, October 16, 2006 “Sandwich Community Planning Study” and you will understand better her complaint:

  • “Naturally, if you are involved in the process, you'd like to be able to see the draft and be able to comment on it BEFORE it is presented. Seems only fair. On AUGUST 25, Administration wrote:

    "your Chair has asked that we circulate for your comment/input, a draft Sandwich Community Planning Study before we submit it to City Council. In order to meet our deadline to submit items for the October 30, 2006 Council Meeting, you must be prepared to receive & review the draft study, and reply with any comments to us, all by email within the period of October 11-13.

    Please be aware that if the volume of comments received by Oct 13 exceeds our staff's ability to amend the draft CPS report by Oct.17, the report will be delayed for submission to the Nov 6 Council Mtg [i.e. the last one before the municipal election]. Also, this time frame means that any comments received from individual Task Force members will not be able to cross referenced by other Task Force members at a meeting, before they are considered for inclusion in the report."

    So far so good EXCEPT for one thing....the draft Report was never sent out to all members!"

Of course, Council approved the Planning Study. And guess what came next out of the blue:

  • City blocks bridge plans: Legal battles ahead for city;
    Windsor Star 01-30-2007

    City council effectively shut down the Ambassador Bridge's plans for a $20-million plaza expansion by passing a bylaw Monday that forces all construction activity to stop in the city's west end until a community improvement plan is developed.

    One councillor described it as "a declaration of open warfare" against the Ambassador Bridge.

    "We've been fighting with them and this accelerates it," said Coun. Alan Halberstadt, who voted against the bylaw. Halberstadt says he sees legal battles on the horizon. "We're going to have to have deep pockets."

    The controls that were approved -- called an interim control bylaw and a demolition control bylaw -- will be in effect for one year and may be extended to two years while a community improvement plan is completed.

    The bylaws will not permit the construction of new buildings or structures or the demolition of old ones, and will ensure that the area's attributes and physical features are not negatively affected or destroyed.

    The move was vehemently opposed by the company that owns and operates the Ambassador Bridge. "It's a disguised method of being able to thwart the efforts of the bridge," said Leon Paroian, the company's lawyer…

    A community improvement plan for the Olde Sandwich Towne Community Planning Study Area is the tool that is required to revitalize the area and preserve its heritage. It's a process that's been in the works for nearly two years, Coun. Ron Jones said…

    Several councillors refused to support the motion because it came out of right field. Councillors Bill Marra, Drew Dilkens and Halberstadt voted against the bylaw.

    "I'm a bit offended how it came forward," Halberstadt said.

    "I think Mr. Paroian is right, if it walks like a duck and talks like a duck, it's probably a duck."

After the one-year initial term of the Interim Control Bylaw it was extended

  • West-end land freeze stays; Council extends bylaw halting demolitions until January 2009;

    “The bylaw has been extended for another year until end of January 2009 to impose interim control on uses of land designated within the Olde Sandwich Towne Community Planning Study Area…

    The decision was supported by city council despite objections from Paula Lombardi, lawyer for the Ambassador Bridge company, who said the city had no legal or planning basis to extend the bylaw.

    "The sole basis is nothing more than bias against the (bridge company)," she said. "What is the reason for such a draconian tool other than its anti-competitive nature."

    The boundaries of the study area are not supported by any prior city planning or consistent with any historical boundaries, Lombardi said. "This proposed extension is nothing more than a backhanded way to delay plans of the (bridge company)," she said…”
Let’s take a look at the Heritage matter and it is not free from controversy either. I wrote before in September, 2006:
  • “The City's Heritage Planner heard from a number of possible contractors that the City's $50,000 limit on the contract was too low. It looks like none of them bid. The bid from Stantec was at $77,400 which is over the limit although the 2006 work was under the limit at around $40,813. Nevertheless Stantec was recommended by Administration.”

The contract went to Stantec where Sam Schwartz’s former assistant went to work although I do not think that he was involved in the file. Remember the brouhaha that arose in May/June, 2007 when he made some negative comments about how they Mayor handled the border file in the Windsor Star and in Chris Schnurr’s and Councillor Halberstadt’s BLOGs. A commentator on Chris Schnurr’s Blog claimed that he had to

  • “face some music Wednesday by Stantec for upsetting the mayor’s office.”

I mention this because of the comment made by Mr. Heil

  • “Heil on Thursday said the study was done by an outside consultant with no connection to the heritage committee…”

    He said he is fed up with what he perceives to be disrespect shown to the committee by city council and senior administration. He accused the city's CAO John Skorobohacz and councillors of using the committee to carry out political agendas instead of protecting the city's heritage.”

I am in no position to determine what the truth of any of this is. Only someone who has access to City documents and can interview the parties involved would be able to do so. However, what I can see causes me a great deal of concern. Because of Mr. Heil's resignation, I am more suspicious now that reports that are supposed to be independent may well have been tainted for political purposes, namely to stop the Ambassador Bridge Company. If so, the lawsuit will be a very messy one and the consequences to taxpayers considerable.

It is not just BLOGGERS or NAYSAYERS who are pointing out the problems but Councillors, a citizen member of a City committee and now a Chair of a committee directly involved.

I talked about "defining moments" in another BLOG. Here is another one for Councillors. What will they do about it?