Commentary

Eisenberger Must Stand Firm on Ending Red Hill Lawsuit

Mayor Eisenberger needs strong backing from the community to fend off those who want him to shake down Canadian taxpayers for cash.

By Don McLean
Published January 24, 2007

Mayor Fred Eisenberger has pledged to end the city's lawsuit against the federal government over the Red Hill Creek Expressway, but he needs some strong backing from the community to fend off those urging him to continue to shake down Canadian taxpayers for cash.

The lawsuit began nearly three years ago with the court filing of a statement of claim naming 65 federal government employees and four former cabinet ministers and accusing them all of conspiring to hurt Hamilton.

Red Hill Valley, Dec. 2003 (Image Credit: Aiva Aerial Photography)
Red Hill Valley, Dec. 2003 (Image Credit: Aiva Aerial Photography)

City Council formally ratified the action six months later, in November 2004, by an 8-7 vote after hearing assurances of victory from David Estrin of the Gowlings law firm.

Since then, Gowlings has collected $200,000 from the city, but the suit hasn't made it into a courtroom.

In the remarkable statement of claim, Estrin charged "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."

It also claims "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".

Absurd Lawsuit

The lawsuit is absurd on multiple levels - from exposing a remarkable persecution complex in the former Council, to believing that 69 federal civil servants and politicans could even organize a conspiracy, to assuming that Canadian taxpayers will fork over $75 million for the environmentally disastrous expressway mistake at a time when the rest of the world is trying to figure out how to reverse global warming.

On a much more sinister level, any acceptance of the outrageous accusations will impose a deep chill on the enforcement of environmental assessment and other environmental laws across the country.

If the Harper government should grant Hamilton even one dollar over the lawsuit, it will send a message to the named (and unnamed) civil servants in Environment Canada, the Department of Fisheries and Oceans, and the Canadian Environmental Assessment Agency that they should back off from doing their job.

The federal environmental assessment (EA) of the expressway began when it became clear that the city was planning to relocate seven kilometres of Hamilton's second largest stream.

Federal environmental law requires that its staff conduct an environmental assessment before issuing a fisheries permit for any project that may involve "the harmful alteration, disruption or destruction of fish habitat".

The re-location of the creek was the largest in Canadian history, so there was very good reason for a permit requirement and an assessment. The federal employees had no choice.

The city accepted the validity of the assessment for fifteen months (from May 1998 to August 1999) before deciding to launch court action to stop it. Our Councillors then spent $3.5 million on a two-year court battle, with most of the money going to Estrin and his firm.

That two years of city-imposed delay of the expressway has now been transformed in the hands of its lawyers into an alleged five-year delay caused by the federal authorities.

The massive legal expenditure won a ruling that the assessment was not required - a decision that has since been twisted by lawsuit supporters into claims the court concluded the city was abused.

Judicial Abuse of Logic

There was 'abuse', but it was of logic and it went against the federal side. The judge's reasoning was so bizarre that the feds had to amend the Canadian Environmental Assessment Act to plug the huge holes she created.

First she decided that construction of the expressway had begun before June 1984, the date at which federal environmental assessment law came into legal force.

This curious conclusion was arrived at despite the fact that no one argued any shovels were in the ground before 1990. Instead, the judge decided that steps such as buying land, budgetting for the project and expropriating buildings constituted "construction".

This interpretation was particularly bizarre because a provincial assessment hearing of the Red Hill project began exactly in June 1984 and continued until the end of 1985.

Provincial law is very clear that no proponent of a project may begin any construction prior to receiving a provincial assessment approval, so if we accept the judge's logic, then Hamilton must have been in violation of provincial law.

If the judge's decision had been allowed to stand without legislative response, it would mean than any proponent (public or private) who wished to avoid undergoing an EA would simply have to take some "irrevocable decisions" before they asked for a federal permit.

The judgement also interpreted federal assessment law to mean that no EA can proceed if "irrevocable decisions" have already been taken with regards to a project. This is the aspect of her decision that forced a re-write of the legislation.

If her decision had been allowed to stand without legislative response, it would mean than any proponent (public or private) who wished to avoid undergoing an EA would simply have to take some "irrevocable decisions" before they asked for a federal permit.

Finally, the judge concluded that the feds had bumped up the assessment to a panel review primarily because of concerns about migratory birds.

She said this wasn't permitted because the feds were not positive that the expressway would harm migratory birds and pointed to the federal review on this subject, which stated candidly that there were no scientific studies on what happens to migratory birds when you tear out 44,000 trees and build an expressway.

Having lost the case, the federal government paid a half million to cover the city's court costs - an amount calculated using normal lawyers' fees, not those actually paid by the city.

None of that seems to matter to the Hamilton Spectator, whose editors consider the suit a great way for the federal Tories to buy votes in Hamilton. In a January 15 editorial they shamefully declared:

The best solution would be for Stephen Harper's government to denounce "Liberal interference" and offer a cash settlement. The Tories could score points against the Liberals and boost their stock locally.

In pushing their position, the newspaper continues to promote the fantasy that the city has some hope of winning the lawsuit, and uses this to accuse Eisenberger of giving away millions to put a "band-aid" on community divisions over the expressway project.

Lawsuit Certain to Fail

The reality is that the lawsuit is certain to fail. It has gone nowhere in 27 months despite three different federal governments, two of them minorities.

It went nowhere with the Chretien government against which it was launched. It also went nowhere with the Paul Martin government despite the elevation of expressway supporter Tony Valeri to Minister of Transportation and then House Leader.

A year into the Harper government the only "progress" on the lawsuit is a decision last summer by the city to abandon the court for mediation - something that federal officials aren't interested in doing since they know the lawsuit has no merits.

Di Ianni had two years to get some action from his good pal Valeri and the rest of his fellow Liberals. He came up empty and watched while the Liberals lost all four Hamilton federal seats to the NDP and Conservatives.

So Eisenberger doesn't actually have a choice between giving up the lawsuit or squeezing the Canadian taxpayers for a few tens of millions. His choice is drop the lawsuit or continuing paying Estrin and company to beat a dead horse.

It's difficult for him to point that out and still pursue his efforts to heal divisions and get the city to move forward. The task is made that much harder by a newspaper that backed his opponent and doesn't seem to have gotten over the rejection of the voters.

Citizens need to ensure that the mayor and Councillors ignore this pressure and simply do the right thing.

Don McLean is chair of Friends of Red Hill Valley and coordinator of Citizens at City Hall, a volunteer group that has monitored city affairs since 2004 and distributes free news articles via email. The group can be contacted at info@hamiltoncatch.org.

4 Comments

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By R (anonymous) | Posted February 04, 2007 at 20:49:48

God you people are naive! I am a civil servant and it would be very easy for a high-ranking powerful politician to make a suggestion and influence many civil servants into going in the direction they would want. That’s how the system works. When you are in power you get it your way! If not, you get rid of the people in the way of your vision. Most bureaucrats are there to do the job they are told to do and does not care witch way they are going. They will change with the wind.

The expressway battle is over. You lost! The only good thing I see happening with going ahead with the law suit is the city gets 75 million and it will prove the anti expressway supporter where wrong again. The city has nothing to loose.

I have had a tour of the expressway this fall. Snuck in with some friend on their invite. It will be a beautiful drive. Lots of trees left. You should update your numbers. They cut down just a fraction of the trees the scare mongers talked about. And the salmon. So many and they have swum up stream further they have in 20 year. The new stream is back where it was it the past before people played with it. The flood plains are back and the animals are still there thou I think most of them live in my back yard.

It will be the nice drive in the country. And yes I drive. And so does most of the world. We need the expressway and it should have been built years ago. And don’t say it’s no longer the trend. I have been all over the place and they are building more expressway. Even in Europe where there are great transit systems, they are building more highways and they even have…….oh no one-way streets and parking lots!

27 month into a law suite. Just a drop in the bucket when it comes to lawsuit. Some of these take years and years to complete.

As to hurting someone’s feelings in Ottawa, who cares! They don’t care about us in Hamilton. They hardly know where we are. We are not important enough to show up on their radar.

Yes Eisenberger needs to do the right thing. Keep the law suit going or negoiate a high dollar setelment. Either way it is the only way Hamilton wins.

I think that people should now put thier efforts into widening the Link and up grading the HSR. They need more and larger busses and get the BRT/LRT going. This way the people who want to drive will be happy and the people who want to take transit will be happy.

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By Bleedin'Heart (anonymous) | Posted February 07, 2007 at 03:05:32

This might be the easiest way to prove that Hamilton got a mayor who is different from the last mayor.
It might also prove that if you do fight City Hall, you don't have to lose your home to try, even if you lose the battle. If City Hall begins to consistently go after people through the courts for actively protesting, we may as well just throw in the Democracy towel. An election will then be years of carte blanche to those we elect.

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By Observer (anonymous) | Posted February 12, 2007 at 13:39:57

Wow - if the above commentator is truly a civil servant, it would definitely explain the sorry state of our country - LEARN how to spell, and some remedial grammar would be in cards too. Which witch is which? Suit or Suite? Unless of course a law suite is a new term... Thou? Of course you mean though, unless we're back to olde english, even then that would be an incorrect use.

Geesh.

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By V (anonymous) | Posted November 23, 2007 at 21:24:16

Don McLean fails to point out that the city won the law suit. Now is the time for a fair government to pay costs or be charged in court. What is Don afraid of? Too many names may come up if the suit goes to court?

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