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OMB grants Abitibi motion to dismiss dam appeal

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FORT FRANCES—After hearing both Abitibi-Consolidated and local appellant Allan T. Bedard argue their cases here in late November, the Ontario Municipal Board granted Abitibi’s motion to dismiss Bedard’s appeal of the company’s proposal to spin off the power dam here.

The ruling from OMB chair Norman Jackson indicated not only that Abitibi’s applications to sever the land, and the local committee of adjustment’s approval of them, don’t in any way violate the Planning Act, but that Bedard, in fact, failed to give a good reason for not making a submission to the committee of adjustment prior to it approving them back on July 17.

During the Nov. 24 proceedings, Bedard (on behalf of CEP Local #92) and labour lawyer Ken Stuebing of the Toronto law firm Caley Wray argued that 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, and which were approved by the town’s committee of adjustment in July—should receive an appeal hearing.

Stuebing and Bedard contested that if the approved severances were upheld, it would mean the cost of electrical power to the mill would increase, in such a manner that the financial ability of the mill to compete would be jeopardized.

In turn, there would be loss of employment and the impact on the local economy would jeopardize the well-being of the town itself.

“The submission on behalf of Bedard was that the Planning Act implications that make these appeals worthy of the adjudicative process are the provincial interest in the cost of power, employment, and the financial and economic well-being of the province,” Jackson said in the ruling.

“The board is asked to infer that loss of jobs may occur and that necessarily the well-being of the province and municipalities over the long term will be impacted,” he added.

“None of the above is relevant to a Planning Act application in its generality and instead more appropriately is a consideration of a normal employer/employee relationship.”

Jackson also noted the respondent “failed to substantiate an apparent land use planning ground upon which the board could give or refuse to give provisional consent.”

“The grounds relied upon including employment and the financial well-being of the province and the municipality are appropriate Planning Act language, however, in this case are not linked to the 11 applications for consent under the Planning Act but are more of a legitimate labour relations concern and dispute,” he added.

Jackson also noted that in the absence of written or oral submissions to the committee of adjustment, “CEP 92, with it broad membership, has failed to provide a reasonable explanation for failing to make oral or written submissions to the committee of adjustment.”

“Rather, the reason set out by Mr. Bedard and CEP 92 is the failure of Abitibi to give additional notice beyond the requirements of the Planning Act.

“The board may have empathy for what Mr. Bedard and Mr. Stuebing call the ‘perfect storm,’ a synonym for the economic circumstances today in the pulp, paper, and sawmills in Ontario.

“[But] this board must make its determination based upon evidence as to proper Planning Act considerations,” Jackson argued. “Such considerations are lacking in this case and that goes to the authenticity of the appeals and the need to hear more about the ‘perfect storm.’

“This board finds that the appeals are in the wrong forum.”

Bedard had said in his affidavit at the Nov. 24 proceeding that he didn’t make an oral or written submission to the committee of adjustment prior to it approving Abitibi’s applications because he, nor any other members of CEP Local #92, noticed the ad in the June 30 edition of the Daily Bulletin.

Bedard also said at that time that he was out of the country attending his son’s wedding when this newspaper came out and so 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 contested the ad should have been put in the weekly Fort Frances Times and not the Daily Bulletin, which is not as widely distributed, and he charged Abitibi gave the union no advance warning of the application, as he felt it was Abitibi’s intention to “blindside” the CEP.

But Jackson ruled that “there is no dispute that the appropriate public notice under the Planning Act was given” and “Any more direct notice to CEP 92 is a matter of the collective agreement with normal redress to a forum other than the Ontario Municipal Board.”

“The board is required, under subsection 53(31)(b) of the Planning Act, to determine whether there is a reasonable explanation for having failed to make a submission to the committee of adjustment.

“For all the reasons set out above, the board concludes that Mr. Bedard and CEP 92 have not proffered a reasonable explanation for having failed to make a submission to the committee of adjustment,” said Jackson.

“Rather, Mr. Bedard and CEP 92 would take this board into the realm of labour relations to impugn Abitibi for having failed to give CEP 92 a more direct notice separate from the public notice.

“Under the Planning Act, there is no basis for this alternative notice.”

Bedard could not be reached for comment prior to press time.

When Stuebing was contacted yesterday morning, he said he had just returned from Christmas holidays and he was not aware of any OMB decision at that time.

(Fort Frances Times)

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