FORT FRANCES—The Ontario Municipal Board will be deciding in the next month whether local resident Allan T. Bedard’s appeal of Abitibi-Consolidated’s proposal to separate the power dam here will be dismissed, or whether there will be a hearing—and an opportunity—for local unions to make a case against the dam property severance.
The OMB heard both sides of the case during a videoconference Friday at the Contact North site at Confederation College here.
Ken Stuebing, with the Toronto law firm Caley Wray, and Abitibi lawyer John Alati spent the entire day Friday arguing whether the OMB should grant an appeal hearing or whether it should approve the company’s motion to dismiss Bedard’s appeal.
“The revisions to the Planning Act under the Harris government modified the power of the board to dismiss an appeal without a hearing. There’s a three-part test we have to meet,” noted Stuebing.
“We have to have authenticity, we have to have issues raised in our appeal that should affect the decision if we get to a hearing, and the issues themselves have to be worthy of the adjudicative process,” he noted.
“We’re looking for a hearing because the Planning Act requires the decision-maker, when considering applications such as Abitibi has brought forward, to consider certain matters of provincial interest,” he added.
“The act itself requires that the decision-maker have regard for the protection and economic well-being of the province and its municipalities, as well as adequate provision of employment opportunities,” Stuebing continued.
“As well, the efficient development of land use patterns which sustain the financial well-being of the province and the municipalities over the long-term.
“These interests are all engaged under the act under the current structure,” he added.
“When the Committee of Adjustment is considering an application to sever, these kinds of interests come into play, and the basic point of our appeal is these considerations were not given robust reflection and consideration at the hearing.
“A hearing before the Ontario Municipal Board would give CEP Local 92 an opportunity to address these issues, to have them fleshed out a little bit more, to see whether or not Abitibi’s applications are, in fact, in the provincial interest, as the board is required to consider,” argued Stuebing.
Meanwhile, Alati said Bedard’s appeal should be dismissed for two reasons.
Firstly, Bedard didn’t make an oral or written submission to the committee of adjustment prior to it approving Abitibi’s applications; or to town council prior to it approving the committee’s decision.
Bedard also failed to give a “reasonable explanation” as to why he didn’t make such submissions.
Alati noted notice of Abitibi’s applications were in the June 30 edition of the Daily Bulletin, in accordance with the statutory requirements, and there was no reason Bedard or any other CEP member shouldn’t have seen it prior to the July 17 committee of adjustment meeting when the applications came before it for approval.
Bedard noted in his affidavit that he was out of the country attending his son’s wedding when this newspaper came out, and did not see it. As well, the fact it came out in a paper just before the Canada Day long weekend meant many people were not in town to read it, or too busy to do so.
Bedard also said the ad should have been put in the weekly Fort Frances Times and not the Daily Bulletin, which is not as widely distributed.
While the notice was done according to legal procedure, as municipal planner Faye Flatt attested during Friday’s proceedings, Stuebing said Bedard felt it was “not sufficiently fair” and that Abitibi was trying to “blindside” the union with the placement of the notice.
But Alati noted Bedard also stated in his affidavit that “We had no idea what was intended with the application” and that Abitibi’s rationale in severing the property didn’t become clear to union members until Abitibi issued a press release July 26 regarding its intention to set up a separate power trust company.
Alati added he had a difficult time believing this, considering the notice in the June 30 paper included more than a dozen references to “dam,” “power house,” “transformer building,” and “electrical transmission lines and towers.”
“If Abitibi-Consolidated hadn’t put out this press release, we wouldn’t be here today,” remarked Alati.
“It strains credibility . . . that no one would said, ‘Hey, what’s happening here?’” he added, noting that Bedard has been a mill employee since 1971, involved in the union since 1980, and in his own affidavit made numerous references to the state of the forestry industry and mill closures.
Secondly, Alati said Bedard did not provide “land use planning grounds” in his affidavit, meaning Bedard hasn’t presented any issue with zoning or official plans—just an objection to Abitibi splitting off a separate hydro generating asset.
But Stuebing, citing his client’s affidavit, noted the power and its price is “quid pro quo” with mill production and the 700 jobs it sustains. If Abitibi splits off a power trust, the company will be more interested in making money selling power than paper.
He added a hearing is needed to determine if the competitiveness of the pulp and paper mills “will be undermined” by Abitibi’s proposed move.
Stuebing noted the 1905 power agreement is meant to provide power to both the town and its manufacturing and milling purposes, and that must be maintained even if Abitibi splits off its hydro-generating assets.
But Alati countered the 1905 power agreement will not be broken as, according to his interpretation of it, the owner of the dam has to provide electricity to the town at a low rate, but “there’s no guarantee that power will be supplied to the paper mill at a specific quantity or price.”
Alati added the mill only gets roughly 10 percent of its needed power from the hydroelectricity it generates here and, without any financial analysis, it would be inaccurate to say that if the power trust sold energy back to the mill at a higher cost, it would result in any mill closure.
“The price of electricity itself is not a deciding factor,” Alati said.
He also noted Bedard’s objection was “speculative” and “based on assumptions,” and that the affidavit is based on “economical concerns” and doesn’t speak to whether or not the property severances represent “good and effective planning.”
“In short, the appeal must have substance. This doesn’t have substance,” concluded Alati.
Bedard and CEP Local 92 president Thorrot Cox also got a brief amount of time to ask the OMB to grant a hearing to the appeal.
“We’re asking for a hearing because this affects the future of our community,” said Bedard.
“This is the most serious issue I’ve been involved in,” noted Cox, adding he’s been told that when the new power trust starts selling power back to the mill at an increased cost, it will add $45 to the cost of producing a ton of paper—assuredly making the mill uncompetitive.
“We just want to get in front of the board and voice our concerns,” he stressed.
After both sides made their closing remarks, OMB chair Norman Jackson said board would contact both parties with a decision “within a month, if not sooner.”
“We’ll give it very deep consideration,” Jackson pledged.
Following the proceedings, both Bedard and Stuebing were encouraged by Jackson’s words.
“I think we gave the best presentation that we could,” Bedard said late Friday. “I think some evidence was given here that they’ve got to weigh and they’ve got to weigh it seriously.
“I think . . . Cox put some final dibs on this thing which will allow them to really think about what’s going to happen here,” Bedard added. “Hopefully, they give some merit to having a community appeal hearing in Fort Frances.
“I think we’ve done all we can. I think [lawyer] Ken [Stuebing] did an excellent job.”
“I think it went as well as it could have,” said Stuebing. “I’m confident the board heard us and are taking our submissions very seriously. It’s on the table for them to consider now.”
The application of objection was filed in August by Caley Wray, representing appellant Bedard with the support of the Communications Energy and Paperworkers Union of Canada Local 92.
This was made in response to a set of 11 applications from Abitibi-Consolidated—all of which had to do with separating the mill’s power-generating assets from its pulp and paper assets here, which first went before the town’s committee of adjustment in July.
At that time, the committee approved all 11 applications.
(Fort Frances Times)
Fort Frances Times
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