Tie vote could force resumption of water utility discussions

Richard Rolke - Vernon Morning Star Published: June 19, 2010 12:00 PM

Attempts to apply pressure in Greater Vernon’s water dispute may have backfired. Coldstream and the BX directors recently recommended the water service review be postponed pending a judicial review or Vernon abandoning the legal process. However, that recommendation died in a 3-3 tie vote when it went before members of the North Okanagan Regional District board Wednesday. “It opens the door for the (service review) process to continue,” said Greg Betts, chief administrative officer. It will be up to the participating jurisdictions to determine if mediation resumes.

The prospect of a judicial review began in March when the city appealed an arbitrator’s decision that stated Vernon couldn’t just withdraw from the distribution component of the water utility. A parallel process of mediation, also known as a service review, was also launched to try and find common ground. However, officials from Coldstream and the BX decided in early June that meditation could not continue if arbitration may still occur. “We want to bargain in good faith. There’s no point in holding a gun to our head,” said Mike Macnabb, BX-Silver Star director. The three Vernon representatives voted against accepting the recommendation, forcing the deadlock. “There’s an obligation to all of the taxpayers to work it out,” said director Patrick Nicol, adding that the judicial review is not a stumbling block. “It’s only a barrier if you want to make it one.” Director Mary-Jo O’Keefe doesn’t see a link between mediation and the judicial review. “I understood them as two different processes. I thought they could continue at the same time,” she said.

---------------------------------------------------------------------------------------

So, for my edification, how will the process work? Will Mayor Lippert and Councillor Nicol sit down with the facilitator while Coldstream, B and C will stay away? What sort of negotiations will result from that?

The problem is this:

The Arbitrator decided that he has no jurisdiction in arbitrating partial withdrawal from the water utility. The City took the decision to Court arguing that the Arbitrator indeed has the jurisdiction in the case.

The outcome of the Court’s decision will determine what the next course of action should be. If the Courts side with the City, the Arbitrator will have to continue his arbitration process, thus the facilitation will discontinue till the arbitration is over.

In the alternative, that is the City loses, then we can pick up on negotiations with the City. We can’t negotiate while the Courts are debating the issues.

The City believes that they can save $3.5 million if they can drop out of joint distribution. The City contends that they are subsidizing agriculture rates. The facilitator has already debunked that theory (see Overview Paper, page 14).

If the City withdraws from the court action facilitation can continue. It will also continue if the City loses the case. Otherwise the arbitration will continue.

You cannot negotiate if there are no partners with whom to negotiate!

***********************************************************

Water and Parks facilitation report. -- Astral media.

Local News – Astral News

A discussion on Greater Vernon water devolution almost hit boiling point Friday as Electoral Areas B and C supported Coldstream's motion to postpone talks with an facilitator pending the outcome of a judicial review. Vernon Mayor Wayne Lippert, the lone vote against postponement, said it was ``typical'' of the other three players to stall. He said none had come up with any solutions to the water management issues. Lippert said he was frustrated and disappointed. But Electoral Area C Director Mike MacNabb said the City of Vernon's legal maneuvering had left a gun pointed at the heads of the other players. Vernon is seeking a judicial review after being denied permission for a partial pullout from the water system.

The facilitator does, however, remain involved in a review of the Parks and Recreation Service. Coldstream is urging Vernon to hand over ownership of Kal Beach to the regional district. A cost breakdown of that and of Kin Beach will be discussed at the next meeting.

Kate Bouey - Vernon
----------------------------------------------------------------------------------
Coldstream Council believes that the outcome of the court case will determine the next course of action. Should the courts side with Vernon's position that the Arbitrator indeed has jurisdiction in arbitrating, then the arbitration should continue.

Alternately, if the court agrees with the Arbitrator that he has no jurisdiction for arbitrating partial withdrawal from the service then we can continue with the facilitation between the parties.

Those interested in reading the facilitators report on the water issues can access his report here.

The Parks report is available here.

****************************************************************

Why does NORD employ solicitors?

So, NORD Directors decided that they are better solicitors than the ones they hired! Here is the solicitor’s letter to NORD:

“Dear Mr. Betts:
File No.: 200034
RE: City of Vernon v. Regional District of North Okanagan et al. S.C.B.C #5-102268 - Vancouver Registry

Enclosed is a copy of the Petition filed by the City of Vernon and the supporting Affidavits. I have filed an Appearance on behalf of the Regional District and emailed you a copy of the Appearance and the letter delivering that Appearance to counsel for Vernon.

The Petition does not set out the grounds upon which the application is being made as required by Section 14 of the Judicial Review Procedure Act. I have invited counsel for the City of Vernon to amend the Petition in order to comply with that requirement. I attach a copy of the letter which I have sent to Mr. Hildebrand and I will advise you of his response. At this time there is no date set for the hearing of this application.

I would recommend that the Regional District oppose the application by Vernon since it seeks to overturn the Arbitrator's decision on the lack of jurisdiction which was based on the Regional District and District of Coldstream interpretation of the legislation and application to the Arbitrator.

I look forward to receiving your instructions.

Yours truly,
GM/si
Enclosures”

NORD opposed the city’s attempt to a partial withdrawal from the water utility. They won. Now the city appeals that decision and NORD Directors (the majority, including the three from Vernon) are unwilling to stand up and defend the appeal. Should the city succeed Coldstream and B&C customers would be paying significantly higher rates than city customers. Here is the city’s claim submitted to the Court as sworn to by Mr Leon Gous (in part):

“Vernon believes it has reasons which are both proper and practical for wanting to administer and control water distribution within its municipal boundaries. Vemon believes that water rates currently set by NORD are unfairly prejudicial to Vemon residents, and result in Vernon residents paying approximately $2.5 million more per year in aggregate than they would pay if Vernon controlled its own water distribution. In addition, control of water distribution creates operational difficulties in the administration of Vernon's other activities. Examples of this include the following:...”

Obviously, if the city can save $2.5 million then the rest of the customers have to make up that $2.5 million. That is not what the spirit and the letter of the utility establishment agreement intended. They agreed that all domestic customers would pay the same rate. In fact, they all pay the same even though Coldstream and B&C customers have been receiving inferior quality water. Even after the Duteau Creek treatment plant is put into operation the water from this source will continue to be inferior. There will not be ultra violet treatment such as the one Kalamalka Lake water customers receive. Had the Directors understood the ramifications of their action they might have voted differently. Why did they even support arbitration in the first place if they were not willing to follow through? Now Coldstream has to bear all the costs of defending the action by the city but electoral area residents will share the benefits when Coldstream achieves victory.

Apparently, logic is a scarce commodity among local politicians!

***********************************************************************

Coldstream Wants Water Mediation Shelved -- by Glen Morrison

Coldstream is asking for a bit of second thought in the ongoing issue of Greater Vernon Water devolution.

Coldstream Mayor Jim Garlick says his council is making a request now that Vernon has decided to appeal a ruling by an arbitrator.

"We are also going into mediation, and we're just saying maybe the mediation should go on hold until the appeal of the arbitration is finished."

Garlick says it doesn't make much sense to be negotiating and having court action at the same time.

"The (legal action) could negate everything you're working towards. It doesn't make much sense. Either chose one direction or the other."

Garlick says they're a long way from a resolution on the issue however it might be accomplished.

***********************************************************

Water Devolution -- The continued saga.

Interesting turn of events: While NORD has engaged Allan Nielsen-Welch as a facilitator in reviewing the Greater Vernon Water structure and the various participants have appointed their respective representatives, the City of Vernon instructed its solicitors to appeal (seek judicial review of) the decision of Arbitrator Wallace.

Any attempt to reduce legal fees in respective budgets appear to be premature. Is it worth reviewing the structure of Greater Vernon Water in light of these developments? Only time will tell. Stay tuned!

*************************************************************

Water Devolution -- Arbitrator renders his decision.

Apparently, some browsers were unable to access the arbitrator's verdict. Thus, here is the scanned product!

************************************************************

Water Devolution -- Arbitrator renders his decision.

The Arbitrator adjudicating Vernon's request to partially withdraw from the water utility has rendered his decision. You can read the decision by clicking here. Comments later.

*******************************************************

Need a mathematical genius!

Here we go again: Mayor Lippert is repeating his claim that Vernon could save $3 million annually by pulling out of water distribution.

Here are the real facts: City residents consumed 4,731,796 m3 of domestic water for which they paid $3,832,755 in 2007.

At the same time Coldstream used 1,323,382 m3 and paid $1,072,216, while Areas B and C used 540,902 m3 and paid $540,382.

Is there a mathematical genius who could save $3 million of the $3,832,755 for the City of Vernon customers? Not in my mind! Unless, of course, city residents will pay 18 cents per m3 of domestic water and Coldstream and B and C residents fork out $2.42 per m3.

Should Coldstream and NORD agree to this sweet deal? Not a chance!

It is embarrassing to see the Chair of GVAC making outlandish comments such as these. He voted to eliminate GVAC, yet he again let his name stand for election as Chair. How could someone who feels the need to eliminate a committee ask to be elected for its Chair?

GVAC is a committee of Greater Vernon Water which the Chair is also hoping to break up. Can he be an unbiased Chairperson for that committee?

Food for thought.

***************************************************************************