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Donald Atchison

Looking back at the Saskatoon Transit Strike

I chose not to write anything about the lockout because as soon as it lifted, I got several versions of the in-camera discussions and to be honest, the stories shocked me.  Instead I put together some excellent posts, columns and articles from other people observing the lockout.  

The first comes from October 10th and is by University of Saskatchewan law professor Keir Valance who said back then that the lockout was illegal.  He was right.

More importantly, though, the lockout may well be illegal, and so may be the City’s unilateral changes to the pension plan. And the Union quickly brought an application before the Labour Relations Board, arguing exactly that.

On Sept. 26, 2014, the Labour Relations Board issued an interim Order (LRB File No. 211-14). That Order didn’t end the lockout, but it did prevent the City from implementing any further unilateral changes to the pension plan. On October 14th, the City and the ATU are back in front of the Board to argue about the legality of the changes to the pension plan and to the legality of the lockout.

The Law

The language that potentially renders the City’s actions illegal is the same now, under the new
Saskatchewan Employment Act (“SEA”), as it was under the now-repealed Trade Union Act. Section 6-62(1)(l)(i) of the SEA reads:

6-62(1)It is an unfair labour practice for an employer, or any person acting on behalf of the employer, to do any of the following:

(l) to declare or cause a lockout or to make or threaten any changes in wages, hours, conditions or tenure of employment, benefits or privileges while:
(i) any application is pending before the Board…

["Pending" means that the hearing of the application has begun but the Board has not yet rendered a decision, so an Employer or Union could not, for instance, file a frivolous application just to prevent a lockout or strike.]

Unfortunately for the City, there was an Unfair Labour Practice (“ULP”) application pending before the Labour Relations Board when the lockout notice was issued. It appears the ULP was unrelated to the lockout – it related to discipline of a bus driver and was heard back in May – but the language in the SEA doesn’t say a “related” application, or anything of the sort. It says any application.

In order for the lockout and the pension plan changes to be legal, the City has to convince the Labour Relations Board that when the SEA says “any application”, the statute really means “any related application”. That flies in the face of the plain wording of the legislation. However, in fairness to the City’s position, most of the time the ULPs in such situations are related either to the lockout itself, or to the collective bargaining process that was underway. The intention of s. 6-62(1)(l) is to ensure that employers don’t “raise the stakes” on a ULP by trying to place economic pressure on a Union that has decided to pursue its rights before the Board. It’s about protecting the integrity of the Board’s process, and not allowing the rule of law to be undermined by economic power.

Still, the Board can’t simply decide what it thinks the law should be. It’s got to operate within the terms of the legislation that gives it its authority (the SEA). Without getting into the intricacies of statutory interpretation, the City would have to have some strong evidence that the Legislature somehow did not intend for the statute to mean what it says it means. That’s not impossible. But the Union has in its favour the fact that the Legislature could have changed the language of the statute when it implemented the SEA – but didn’t.

Okay, so it got weird from the start.  I knew that law and when I probed members of council about it, they started telling me that the city didn’t like the law and it was ruining their strategy so the Board would have to overturn it.  When I brought up voices like Valance, they looked at me like I was mad.  Again, kind of weird.

Oh yeah, there is also this sentence from Valance from that post

Ironically, had the City waited two weeks, there would have been no question that the lockout had been properly issued – because the outstanding ULP was decided on October 3, 2014.

Saskatoon City Council wasted over $1 million of “ratepayers” (you know those of us they are trying to protect) money because they could not wait two week?  Think about that for a while.  If they had waited two weeks, it would have been a legal lockout and they probably would have won.  

So now the Mayor wants a judicial review on the ruling.  According to Valance, that stands little chance of succeeding.

If the City pursues judicial review of the LRB decision, the question will be whether the LRB’s interpretation of the SEA was “reasonable”. In my view, it was (though I hasten to add we still don’t have the Board’s written reasons for why it ruled as it did). The Board has the jurisdiction, responsibility, and expertise to interpret its governing statute. It’s owed deference in its decision. And in my view, finding in the City’s favour would have flown in the face of the plain language of the legislation, and would have flown in the face of the fact that the Legislature has apparently – at least twice – refused to change the section in question.

Whether ss. 6-62(1)(l) and 6-63(1)(b) are good or bad for labour relations is not the point. That’s for the Legislature to decide. And the Legislature has decided at least three times (in 1944 when it proclaimed The Trade Union Act, 1944; in 1993; and in 2013) that these sections were to stay. It should be up to the Legislature to change them.

So let’s get Les MacPherson’s take on it as he arrived at many of the same conclusions as Valance and also the Labour Relations Board (and might as well toss this in there, the Government of Saskatchewan in 1944, 1993, and in 2013)

I find myself mystified by this transit fiasco.

I’m no lawyer, but, to me, at least, it seems crystal clear that the lockout was illegal in the first place. The labour act says there can be no strike or lockout with a pending grievance before the labour board. There was a pending grievance before the labour board, filed by the union in June. On the face of it, the lockout was illegal.

City lawyers argued that the grievance was not relevant to negotiations. Except the act doesn’t say anything about relevance to negotiations. It says “any” grievance. The city, unwisely, was betting the board would read into well-established law what isn’t there. For that to happen would be almost freakishly rare.

The city further argued that the grievance was not really pending because the board had not started formal hearings. Except the act doesn’t say anything about whether hearings have started. It just says there can be no strike or lockout if a grievance is pending. Again, the city gambled that the board would interpret the law to mean what it doesn’t say. Losing this bet will cost Saskatoon taxpayers into the seven figures in refunded wages for lockedout bus drivers, for refunds on transit passes and for legal costs. For the damage done to those who rely on transit to get to work, to get to the store, to get the kids to daycare, there is no accounting.

The city argued that the law as it is invites labour turmoil. Any looming strike or lockout, otherwise perfectly legitimate, could be thwarted by filing a bogus grievance. Maybe so, ruled the labour board, but the law is the law. There are many legislated restrictions on strikes and lockouts, the ruling explained. This is one of them.

“It is not for this board to rewrite the Saskatchewan Employment Act in the fashion suggested by the city.” The city should not have to go to the labour board to be told the law is the law.

By appealing this decision, the city now will be asking the Court of Queen’s Bench to rewrite the law. Why the court would be any more likely than the board to do so, no one has explained. The board is appointed by a Saskatchewan Party government, and not because it is labour-friendly.

As for the labour turmoil predicted by city solicitor Patricia Warwick if the decision is allowed to stand, I wouldn’t bet on that, either. The prohibition on a strike or lockout when a grievance is pending is nothing new. It has been a part of Saskatchewan labour legislation since 1944, and has remained in place after multiple revisions and amendments in the decades since. The idea is to prevent undue pressure on the board while it adjudicates a grievance. Why a law in place for 70 years suddenly would cause labour turmoil is no more clear to me than it was to the labour board.

He summarizes with this

To me, it looks like council got lousy advice. On a case that might have gone either way, an expensive defeat is bearable. In this case, council was advised to gamble taxpayers’ money on a crazy long shot for something it could have had anyway, and legally, in two weeks. If I were the client here, I would be angry.

What kind of shocks me in this whole thing is that the city has several solicitors to draw advice from.  They also have a lawyer on Council (Tiffany Paulsen) and someone who is a labour expert (Ann Iwanchuk) who also overlooked or ignored the act.  There are also some other councillors who bragged to me about their knowledge of the labour act and were 100% confident that this was a legal lockout.  How did the all get it wrong? 

What goes on in that bunker where everyone gets it wrong and is utterly shocked when a ruling where all of these outside voices are saying you are going to lose goes against you?  

There is a weird reality that council puts itself in sometimes.  Remember snow removal when council voted against residential snow clearing.  Then it snowed a bunch that winter and in an “emergency debate” on it, many of them played the victims and used phrases like “under siege” and seemed shocked that it snows in Saskatoon in the winter.  The city wasn’t under siege but as councillors they were.  It was all about them.  Then the mayor starts to lecture manager who do not have the funds to do snow removal to do a daily press conference because it must be a misunderstanding right?

The same thing happened with the outrage over roads.  The city for over a decade (it started when Atch was elected) cut back on road repair and maintenance.  What happened?  The roads fell apart and again council acted as it they were victims of this. Now we have the same thing.  A hashtag, website, new pylons (no I am not talking about new politicians but actual pylons with “Building Better Roads” on them) and congratulatory radio ads about doing what other cities just do, maintain the roads.  I don’t get it but it is a weird group dynamic.  There are some intelligent members on council but for whatever reason the sum of the whole is far less then the total of the parts and the result is a very, very low functioning city council and we as a city suffer because of it.

A picture is worth a thousand words

The photo below is from Andrea Hill.  Twitter’s ability to show photos has sucked in recent days so I thought I would post it here. (it took 20 minutes for Twitter to load this up)

Sad Saskatoon City Councillors

Those are some sad, sad looking city councillors.  Well Zach Jeffries looks angry but by in large, they look sad.

Progressive Leadership

Atch is showing true leadership on the compost program for the City of Saskatoon.

So the city will run out room at the landfill in 30-40 years if we can’t cut back on the waste going to the landfill.  Most cities in Canada have a composting program like our recycling.  Compost is collected and sold or used for other purposes.  It works well but it would cost to have picked up.  Again, it is what other cities do.  So what does our mayor do?

According to CKOM News, he didn’t do anything.

However, Mayor Don Atchison and councillor Pat Lorje expressed reservations about the implementation of a comprehensive organic waste collection program. Atchison argued that taxpayers may be reluctant to accept another mandatory waste program so soon after the rollout of curbside recycling.

In other word he was worried about the political consequences of taking a long term view of the problem.  That’s leadership Saskatoon style.

Personally it doesn’t matter to me.  Ever since I accidentally built a bio-reactor at home (seriously, it works amazing), we haven’t sent any biological waste to the landfill in two years.  Grass and leaves is cut and mulched, food waste goes in the compost bin/reactor and nothing at all goes to the landfill.  Living in Mayfair, we have very little topsoil and so the idea of sending organics to the landfill when it can help with the garden and lawn makes no sense.  

As a citizen of a city that is running out of space at the landfill, this matters a whole lot to me.  As a father of two boys that may choose to make Saskatoon home, this matters to me.  Choosing short sighted politics instead of a long term solution is… well… typical.

The StarPhoenix: When it comes to transit, Saskatoon talks a better game than it delivers

From today’s The StarPhoenix editorial.

Given the fiasco involving route cancellations that greeted riders on the first day of a new school year, it’s difficult to take seriously the City of Saskatoon’s commitment to developing a bus rapid transit system, improve services to meet the demands of growth and lessen the urban carbon footprint.

City Hall seems to be pinning the blame in part on a shortage of qualified heavy duty mechanics in the market, as well as an inability to reach a contract with its transit employees, which is forcing it to advertise for mechanics at wage rates based on the expired 2012 contract.

A month after transit director Bob Howe apologized to commuters after cancelling seven routes because too many buses needed repairs for short-staffed mechanics to fix them all, and described the situation as an “anomaly,” frustrated university students and high schoolers on Tuesday saw the cancellation of direct routes to campus, downtown and many high schools.

In addition, no buses will be added to the busiest routes at peak travel times, and transit officials advise commuters to avoid peak morning and evening trips if possible. It’s those who are trying to get to work or school on time, and return home afterward, who are creating the “peaks,” and it’s transit’s job to accommodate their needs, not the other way around.

The cancellations and delays in the implementation of new routes were announced on Friday, before the Labour Day long weekend. Transit users, who have had to cope in recent years with frequent changes to routes and services, can’t be blamed for questioning why the city cannot seem to get its act together on managing the service properly.

“We have been in an environment of labour uncertainty for the last number of months which has proven to be challenging,” noted the city’s news release on Friday.

Yet, what isn’t clear is what role Saskatoon’s policy of buying second-hand buses that other cities don’t want is playing in creating the demand for more mechanics and a repair backlog that had rendered the transit service unable to field a full complement of buses for its routes.

Mr. Howe says transit has sent as many buses as possible to be repaired by private companies. Given that the problem has been obvious for at least a month, when the previous route cancellations occurred, when did the city began to contract out the work?

Surely, transit officials should have known long before Friday that they lacked enough buses and told the public, instead of waiting until the last possible moment to disclose the fact. This is far from acceptable customer service and effective issues management.

Mr. Howe said in July that transit was upgrading its aging fleet and expects to get five new buses this fall. It’s now obvious that the decrepitude of his 158-bus fleet has reached a point where even more replacements are needed soon, making council’s decision to use for the new commuter bridge the funding slated for bus replacements seem unwise.

When it comes to transit, Saskatoon talks a better game than it delivers.

Excellent editorial but I have one bone to pick with it. I am not even sure City Hall talks a good game about transit.  If anything the message that I have heard from City Council at budget time is that transit is a burden on the city as they transfer more costs onto riders.

I have written about our aging fleet before but it is worth repeating.  Some of our busses are so old that people travel to Saskatoon just to ride of them like rolling museum pieces.  They shouldn’t be repaired by Saskatoon Transit but the Western Development Museum.  Instead of replacing them, Saskatoon City Council is building a bridge for cars.

It is to be expected.  With the retirement of Myles Heidt and the defeat of Bev Dubois, there are no councillors who are strong on public transit.  Unlike Calgary and Edmonton who both feature mayors who use and advocate for public transit, I am unaware of any councillors who actually use it.  Maybe that explains some of the problems that we have.

The other problem is the Saskatchewan government contributes nothing to the bottom line of our transit in cities.  Whereas Manitoba pays for almost half of Winnipeg’s transit costs (and injects capital for BRT), we get nothing except some money for Access Transit.  Arguably that money is spent on STC which is still needed but it means that Saskatoon, Moose Jaw, Prince Albert, and Regina are some of the few cities that are left trying to provide funding for transit with no help.  While I agree that council has handled this poorly (again), a big part of the blame lands with governments going back to the Blakeney era that ignored public transit in the cities.

Look but don’t touch

I know most of us are more concerned with the roads but have any of you noticed the condition of many of our light standards in the city.  Some are almost completely rusted through.  I have poked at more than one and had my finger go right through.  Others are really swaying in the recent wind. 

According to city reports, City Council has not only ignored city roads but also our electrical grid.  I know, I know, marking priorities is hard.

There were roads, bridges, and snow to neglect and now we have light poles that are not structurally safe and are rusting out. It’s actually remarkable that council could let so many things at the same time.

Oh wait, amidst all of our infrastructure falling, we have a clear goal.  In case you have ever wondered what drives the Mayor and council’s desire to keep taxes low when our city needs revenue, it is Calgary.

This is from 2011.

Saskatoon’s mayor is eyeing a property tax increase of one per cent per year less than Cowtown’s over the next decade.
In 10 to 15 years, Saskatoon’s tax rate could equal that of Alberta’s biggest city, where ratepayers have the lowest property taxes among major cities in the country, he said.

Calgary has fun with this.

To help set its mill rate, Calgary relies on a so-called municipal inflation rate, a combination of costs for salaries, service contracts, fuel and materials. Saskatoon’s administration is coming up with a formula to calculate its own municipal inflation rate and Atchison has said in the past it makes sense to try to tie property tax hikes closely to that amount rather than the consumer inflation rate.

Property tax increases since Atchison became mayor have averaged 3.7 per cent annually. During the same period, Calgary’s property tax has gone up by an average of 4.2 per cent with the municipal portion jumping an average of 6.5 per cent.

Atchison’s wish already has a fiscally prudent Calgary alderman, Andre Chabot, chuckling.

He notes this spring council chose to boost the education portion of the property tax by a onetime whopping 10.4 per cent to take advantage of the province’s move to cut its portion of the property tax.

By comparison, Saskatoon’s property tax rose by a relatively small four per cent in 2011.

“For the mayor of Saskatoon to make a claim like that, it certainly is a politically astute kind of selling feature for his proposed tax increases,” Chabot said, “because he can always make the argument that it was at least one per cent lower than Calgary’s increase.

So how many miles of roadways does “politically astute” pay for?

Of course there is a reason why Calgary’s mill rate is lower.  They collect more business tax.

Jack Vicq, professor emeritus of accounting at the University of Saskatchewan Edwards School of Business, said there are differences between how Saskatoon and Calgary are funded that need to be accounted for. The amount in business tax collected in Calgary keeps its property tax rate lower, he said.

More from Vicq

“Let’s make sure the framework we’re in is the same,” Vicq said. “I would go at it from the perspective of really, what is it we should be doing in the city of Saskatoon and how are we going to do that? And maybe that takes a property tax that is higher than Calgary. You can get into trouble by just looking at Calgary and saying, ‘I want to be there.’

“You might lose sight of what you should be doing as a city or what residents expect as a city.”

As an aside, as the video below shows, I am not sure that our mayor even understands basic tax policy.

Back to what we are talking about.

First of all, the reason we have a lower rate is that we don’t fund the city the same way.  We have inferior snow removal and road repair policies to Calgary.  We also do things like underfund transit and force them to purchase worn out busses from places like Edmonton.  Parts of our bus fleet are so old that people come from all over North America to ride them.  The reason we keep using them, they are cheap to run (but you knew that already).

We don’t repair things like light poles is no big shock but now we have the cost of replacing them that is going to be a big shock to the bottom line.  Either that or we will just watch them fall over.

If you are ever in budget review meetings, you hear city managers say, “If you cut this amount, I can’t afford to do maintenance on parks” or “We won’t have enough for fuel”.  Those things are cut anyway.  You know because why do city vehicles need fuel budgeted for properly.  In many ways I think you can say that Calgary is getting far more bang for their tax dollars than we do.

Instead of funding the city the way it needs, we have actually developed our own spin that blames “freeze thaw” for bad roads (we don’t have a freeze thaw cycle, it just freezes) or that rain wrecks our roads (because we are too cheap to use rock base and instead only use sand).  My favourite is listening to council talk about how brave and hard working our city workers are doing instead of talking about how underfunding is creating this mess.  My favourite was when Pat Lorje suggested that city council was under siege last winter because of the lack of snow removal which was something she voted against.

The whole things reminds me of Winston Churchill underfunding the defences of Singapore in 1937 while First Lord of the Admiralty and then calling the British general performance there abysmal when Japan invaded in 1942 and they had no defences to work with.

We have roads that are brutal because the Mayor and council stopped funding the roads years ago.  We have light posts that aren’t safe because the city doesn’t have the cash (because of our desire to beat Calgary) and our city is dirty and grimy into July because it is cheaper to clean the streets slowly rather than quickly.  We get upset that we don’t have enough swim lessons but underfund leisure services as the city has grown.

Jack Vicq is right.  Instead of playing political games, we need a council (who can override the mayor) and fund the city properly.  Instead we get a Twitter feed that is constantly tweeting power outages because they take large dividends out of Saskatoon Light & Power, a #BetterRoadsYXE hashtag, new pylons and lots of emails from the city telling me how much they are doing (that’s another topic).

While the 2011 article mentions the mayor, it is also the fault of city council.  Darren Hill, Pat Lorje, Charlie Clark & Tiffany Paulsen have all been there at least two terms and are working on their third terms.  Mairin Loewen, Ann Iwanchuk, Randy Donauer have all been re-elected once.  They are all there when the council pulls a mill rate out of Calgary and agree to it.  When you are as integral part of the problem, can you be part of the solution?

Sadly repairing the grid or maintaining the Traffic Bridge doesn’t get people elected.  New bridges and low taxes do.  This problem isn’t going to go away and if we don’t do something about it in 2016, the mess will be just huge when we do.

Mayors don’t create jobs or grow the economy

The next time you hear Don Atchison or any civic politician try to take credit for the economy or job creation, read this article.

It always rings false when political candidates promise to create heaps of new jobs. Conservative Tim Hudak claims he would wave his magic wand and create no less than one million, just like that.
When candidates for mayor vow to spin jobs out of straw, the boast sounds especially hollow. Most job creation comes from economic growth, and mayors have very little power over that. Even prime ministers and premiers exaggerate their influence over the business cycle and they have far more than mayors.

That hasn’t stopped this year’s crop of mayoral candidates from posing as magicians of job creation. Start with John Tory, a former Conservative leader and business executive who should know better.

On Wednesday his staff sent a bulletin to the media: “John Tory to unveil plan to create 70,000 jobs.” When the promised unveiling came the next day at an east-end coffee wholesaler, it turned out that he was merely expressing support for a private company’s existing proposal to develop some industrial land near the mouth of the Don River.

First Gulf wants to build a new business hub on the site, an ambition it announced a couple of years ago. Its chief executive says the development could bring “as many as” 70,000 jobs to the city. In other words, up to 70,000 people could work there one day. Making a place for 70,000 people to work is not the same as creating 70,000 jobs.

Though the proposal is promising, there are big hurdles to jump before it can happen. Making the land usable would require rerouting the east end of the Gardiner Expressway and running new roads and transit lines into the area at the cost of many millions. All of this is already being studied at city hall. Mr. Tory’s endorsement of someone else’s proposal that is years from fruition hardly amounts to “a plan to create 70,000 jobs.”

His other job promises are almost as implausible. He wants to start a new medical school at York University, exploiting the coming subway link with Humber River Regional Hospital and creating a “high-tech employment corridor.” Mayors don’t create medical schools. That is a provincial responsibility.

He wants to lean on companies to hire more young people, a plan that, according to his website, would “result in thousands of new youth-employment jobs in his first term.” He would use his personal connections, too, calling business contacts to remind them of their “civic responsibility” to hire the young. Even a man as plugged-in as Mr. Tory is unlikely to create many jobs just by picking up the phone.

How to cities encourage economic growth?

Rather than pressuring or forcing companies to hire, city hall should be creating the conditions that make them want to hire. That means keeping taxes reasonable, cutting red tape, providing good services, building and maintaining infrastructure – all the things that make a city an attractive place to live, work and do business.

Saskatoon has the tax part down, now if we could just cut red tape, provide good services, and maintain our infrastructure, we could become something some day.

Terry Alm Drive

In case you missed the amateur hour that was Saskatoon City Council, you missed the passionate debate over whether or not Mayor Donald Atchison should be able to name streets, parks, and bridges.   Here is what Ward 6 Councillor Charlie Clark had to say about it in his email newsletter.

City Council will receive a report with a few minor amendments suggested to the Naming Process.  Recent debates have raised the prospect of a more significant amendment to the process.  I would like the process to be changed so that the actual designation of names to parks and streets is not done solely by the Mayor.  Saskatoon is the only City in Canada that grants this power to the Mayor alone, and I believe it is time to change this. 

For me the issue is not out of concern with any specific names that have been applied in the City.  There are two main reasons. 

First having a single elected official hold naming power opens the process up to political influence, rewarding friends or campaign donors. This is not about Mayor Atchison specifically, but a question of good governance and creating policies that mitigate this potential. 

Secondly – there have been hundreds of names applied in recent years to streets and parks in the City, as we add on new neighbourhoods.  These names form the identity of our neighbourhoods and the City as a whole.  The responsibility for establishing this story for our community should not be the purview of one individual.  Ideally this is the kind of work that would have the input of people with historical knowledge and understanding of our community from several perspectives – to help ensure that as we make our mark on these communities with names that they capture a breadth of the history and identity of the City.  

There is a tremendous opportunity to develop a thoughtful process to ensure that these streets and parks capture the essence of who we are as a community and where we came from.  Right now the process relies on the public or property developers to bring forward names, a Committee made up of politicians and City staff determines whether a name can go on the “Names Master List” and then the Mayor picks the ones he wants to use. 

I think it makes sense to have a committee that has a mixture of elected people and the public on it to be part of the approval and application of names.  I also think that it would be worthwhile to engage our City Archivist and other historians to look at our Names Master List and identify which communities are being missed and a way to ensure that these get represented. 

Yes you read it right, Clark used the term, “tremendous opportunity” to describing a process that involved naming street names.  I don’t know what to say either except that its probable that Clark gets excited over governance things that I do not.

Whether or not you agree or disagree with this is irrelevant.  In my opinion it is a shame that we don’t have streets that honour Henry Dayday, Roy Romanow, Lorne Calvert, and even Grant Devine.  Heck I am all for an entire neighbourhood that uses names of former premiers. (austere houses are on Romanow Avenue while over mortgaged houses are on Devine Lane)

What does surprise me is that if council wanted to move on this, they should have done one thing really well.  They needed to have counted the votes for and against before the council meeting started and they never did that.  If they did do that and someone changed their mind (which it sounds like happened), that is politics but somewhere along the way, you need to know that stuff or you look like idiots.  So after some attacked and defended the mayor and in many ways made it personal, it was time to vote which was a five-five tie so the motion failed, the status quo continues and you look really small minded and petty.  Oh right, you have also just attacked the mayor (or one of the few perks the mayor has) and now you are left with nothing to show for it.  Well except with an even more divided city council.

Of all of the issues facing the city, fighting over who gets to name streets isn’t high on my list of things that need to be done.