Motion 503: Calling all Hypocrites and Homophobes

Posted on April 13, 2014 by susanonthesoapbox

In the same week that the Alberta government debated and rejected Motion 503, Rob Anderson, Wildrose House Leader, made an emotional plea to put an end to name-calling—specifically “Lake of Fire Party” and “homophobe”.

It was a bizarre week. Here’s how it rolled out.

On Monday, Liberal MLA Kent Hehr brought Motion 503 to the House. He asked the government to make school boards develop policies to support students who wanted to set up gay-straight alliances (GSAs). Note: Motion 503 did not force school boards to create GSAs. It simply required school boards to support them with good policies if a group of students wanted to create a GSA.

Kent Hehr

The PCs and the Wildrose fell all over themselves trying to assure us that nobody was more anti-bullying than they were…then while extolling the virtues of GSAs they confirmed a school board’s right to kill them with impunity.

The similarities between the PC and Wildrose positions were unnerving. Both parties started with statements that sounded plausible but quickly degenerated into utter nonsense.

Motion 503 must die because…

The PC/Wildrose Brain Trust came up with five reasons to reject Motion 503. (Can you figure out which party proffered which argument?)

  1. LGBTQ students are already protected from bullying under the new Education Act. Perhaps, but the Education Act will not become law until 2015, what are these kids supposed to do in the meantime?
  2. The Motion singled out a specific group of students, potentially at the expense of others and “we can’t possibly legislate for each and every one of these groups.”* Actually we can and we must when the school boards responsible for “these groups” prevent them from protecting themselves against bullying.  
  3. School boards are elected to make schools a safe learning environment. There is no room for government micromanagement. Wrong. The government must step in when school boards do not act in accordance with the Charter of Rights and Alberta Human Rights Act.  
  4. Urban schools are different from rural schools and faith-based schools are different from public schools; what works in one school won’t necessarily work in another. All of these schools are publicly funded. Their size, location and curriculum are irrelevant; the real question is whether the fundamental rights of their students are violated.  
  5. Forcing schools to “sanction” any organization that promotes concepts that contradict their “sincerely held religious belief” effectively protects the rights of one group by disrespecting the beliefs of another group.** Ahhh. Now we’ve come to the nub of the issue. This requires thoughtful discussion, starting with the question: should a faith-based school that denies a specific group of students their fundamental rights continue to receive public funding?

A few PCs break ranks

Not all PC MLAs voted the party line. Twelve MLAs, including potential leadership candidates Ken Hughes and Tom Lukaszuk, broke ranks and voted with the Liberals and the New Democrats in support of Motion 503.

Sandra Jansen, Associate Minister for Family and Community, provided evidence demonstrating the vulnerability of LGBTQ students: 64% of LGBTQ students feel unsafe in their own schools; a gay student is 5 times more likely to drop out of school than a straight student and a gay student is three times more likely to make a suicide attempt than a straight student.***

Sandra Jansen

Unfortunately Ms Jansen was unable to move the majority of her colleagues. The Deputy Speaker called the vote and the Motion failed.

Which brings us back to Mr Anderson’s “can’t we be nice” speech.

What does bullying feel like?

On Wednesday, Mr Anderson, Wildrose House Leader, was visibly distressed when Human Services Minister Bhullar referred to the Official Opposition as “the Lake of Fire Party over there”.  He objected when Dr Sherman, Liberal leader, challenged Premier Hancock to decide whether he was a “placeholder Premier or a real Premier who stands up to the homophobes in [his] caucus”. ****

Mr Anderson gave an eloquent speech, pausing frequently, his voice cracking as he explained to the House that some of the Wildrose caucus had gay and lesbian family members. Their families included visible minorities. He reminded the Assembly that the Wildrose party changed its policies to include protection of the rights of others regardless of race, religious belief, colour, gender, physical or mental disability, age, ancestry, marital status, income, family status or sexual orientation  

He said:  “I think that some people can imagine the hurt and the pain that it causes certain members in this House and their family members and friends when they are referred to as bigots and homophobes.”****

It was a poignant but hollow moment given that on Monday not one member of the Wildrose caucus joined the renegade PCs, the Liberals and the NDs to give LGBTQ students a way to protect themselves from the “hurt and the pain” caused by bullies in their own schools.

k d lang

Not everybody is as resilient as k.d.lang  or Rae Spoon, unique individuals who survived adolescence in Consort and Calgary to become internationally acclaimed singer-songwriters.  Some LGBTQ students could use a little help;  but in Alberta it’s all about politics, at least for 31 MLAs who killed the Motion and the remaining 37 who failed to show up

*Hansard, Apr 7, 2014, 362

**Hansard, Apr 7, 2014, 364

***Hansard, Apr 7, 2014, 367

****Hansard, Apr 9, 2014, 389, 390, 398

 

Posted in Education, Politics and Government | Tagged , , , , , , , | 24 Comments

The Carpay Decision and a Canary

Posted on April 6, 2014 by susanonthesoapbox

One can’t help but feel Dr Allen’s pain. In fact many of us have felt Dr Allen’s pain, although not to such a debilitating degree.

Dr Allen is a 36 year old dentist from Okotoks. In Dec 2007 he injured his back playing hockey. He spent all of 2008 and part of 2009 doing the rounds of physiotherapy, acupuncture, facet injections, and drugs. In May 2009 his specialist recommended surgery. There was one tiny snag—the surgery couldn’t be performed until June 2011.

Unable to tolerate another two years of agony, Dr Allen found a surgeon in Great Falls, Montana who agreed to perform the operation in Dec 2009 for the price of $77,000. Dr Allen feels much better now, and not simply because his wallet is $77,000 lighter.

After the surgery Dr Allen hooked up with John Carpay, a lawyer, who took Dr Allen’s case to the Alberta Court of Queen’s Bench. Mr Carpay argued that (1) the Supreme Court of Canada ruled in the Chaoulli case that a ban on private health insurance under Quebec law infringed Mr Chaoulli’s Charter right to security of the person, (2) Alberta’s ban on private health insurance is the same as Quebec’s ban and therefore is unconstitutional and (3) Dr Allen should be allowed to sue the government for reimbursement of his expenses as well as damages for irreparable harm to his health due to the delays in obtaining surgery.

Mr Carpay

Mr Carpay and his client lost.

The judge said…

Mr Carpay is not taking this defeat lying down. On his website he says Mr Justice Jeffrey ruled that Dr Allen could not rely on the Chaoulli decision and that Dr Allen would have to re-prove or re-demonstrate the Supreme Court’s finding that the government’s monopoly over healthcare imposes suffering (and sometimes death) on patients on wait lists.

This is an overstatement and simply not true.

The reason why Mr Carpay lost the case was that he failed to provide a lick of evidence to show that Alberta’s ban on private health insurance caused the two year delay in Mr Allen’s case.*

Mr Justice Jeffrey pointed to a number of alternative explanations for the delay including underfunding, mismanagement, shortage of doctors, a disproportionate incidence of this type of back injury, unexpected population increases or differences in the concentration and distribution of populations.

Furthermore there was no evidence to show that if private health insurance were available in Alberta, Dr Allen would have qualified for it, would have bought it and if the insurer had accepted the good dentist’s claim his wait time would have been shorter.

Application denied.

Evidence based decision making

The battle to privatize healthcare is fought on two fronts. First, private insurers are fighting for the right to augment taxpayer funded health insurance with private health insurance (for those who can afford it).  Mr Justice Jeffrey’s decision in the Carpay case shut that down—at least for now.

Second, private healthcare providers are incrementally shifting healthcare provided in public facilities to private clinics where the services will be delivered more cheaply and more quickly (for those who can afford it), thereby reducing the load on the public system. It’s all about market efficiency.

But where is the evidence?

The Canary Report

Studies like Wendy Armstrong’s Canary Report** challenge the blind assumption that the private sector is more efficient than the public sector. Ms Armstrong conducted a study of cataract surgeries performed in Calgary, Edmonton and Lethbridge. All of the surgeries were funded by public dollars.

In Calgary 100% of the cataract surgeries were performed in private clinics, in Edmonton 20% of the surgeries were performed in private clinics, and in Lethbridge none of the surgeries were performed in private clinics. The wait times in Calgary (100% private) were the longest. The wait times in Lethbridge (100% public) were the shortest.

A canary, not a cataract

Ophthalmologists in all three centres charged the province the same government-mandated fee for the procedure; however Calgary ophthalmologists charged an additional fee for the more comfortable soft lens (an extra $250 to $750 per eye); Edmonton ophthalmologists charged about half that and the Lethbridge ophthalmologists implanted the soft lenses at no additional cost.

Bottom line: Ms Armstrong discovered that contrary to popular opinion, the privatization of cataract surgery increased costs and wait times. Anyone who studies market behavior will not be surprised by this—an entrepreneur who controls a significant chunk of the market will charge whatever the market will bear.    

Stories are not evidence

Canadians cherish publicly funded and publicly delivered healthcare above everything else…period! A study conducted by the Environics Institute in 2010 found that 85% of Canadians ranked healthcare as the country’s most important national symbol, outpacing the Charter of Rights and Freedoms, the flag, national parks, “O Canada”, the RCMP, multiculturalism, Canadian literature and music, hockey (yes hockey!), bilingualism, the CBC, Ottawa and the Queen.***

Dr Danielle Martin

There is no question that the Canadian healthcare system is under stress—we all have stories of poor outcomes resulting from chronic underfunding and the mismanagement of resources—however, as pointed out by Dr Danielle Martin who testified before the US Senate committee on Obamacare, “You don’t build a healthcare system based on stories.”****

The reverse is also true. You don’t tear down a healthcare system based on blind faith in free enterprise.   Instead you follow Mr Justice Jeffry’s lead. You demand evidence to support the pitch that the free market can and will do a better job.

Either that or drive to Lethbridge for your cataract operation.  

Disclosure: Ms Soapbox and Ms Armstrong have been friends since 2011.

*Allen v Her Majesty the Queen 2014 ABQB 184, starting at paragraph 39

**The Consumer Experience with Cataract Surgery and Private Clinics in Alberta: The Canary in the Mine Shaft, Jan 2000

***Chronic Condition by Jeffrey Simpson, p 270

****Calgary Herald April 5, 2014, A15

Posted in Alberta Health Care | Tagged , , , , , , | 40 Comments

The Premier’s Penthouse

Posted on March 30, 2014 by susanonthesoapbox

“We run a $40 billion corporation that matters an awful lot to the people of Alberta and the economy of this country”—former Premier Redford in the Legislature, March 4, 2014

Excuse me??? The “government” is not a “corporation”, its premier is not the CEO and the cabinet is not the executive leadership team. Unfortunately Ms Redford and her team failed to grasp this distinction (hint: it hinges on the concept of “public service”).

Last week’s revelation that Alison Redford ordered changes, commonly referred to as the “Premier’s Penthouse”, as part of the ongoing renovations to the Federal Building demonstrates just how far the PC government has drifted from the ideal of public service.

The Federal Building
The Federal Building is a landmark art deco building built in 1958. The government is updating the building to make it suitable for MLA offices and government staff. The renovation contract was tendered in 2008.

The government expects the project to cost $375 million and to be completed in 2015. One small snag—the project will be four years late and $100 million over budget.

In the real world heads would roll. But in the world of government this was a non-event—until the CBC discovered the Premier’s Penthouse nestled away on the 11th floor. Then it turned into a political nightmare.

The penthouse that refused to die
In January 2012 Ms Redford added a penthouse at the top of the Federal Building. Architects prepared plans for a 2,500 square foot space that included two bedrooms, a bathroom, powder room, walk-in closet, butler’s pantry and dining, study and lounge areas. She was partial to the refined style of the Hay Adams Hotel in Boston and was soon reviewing plans and requesting colour boards. Her staff met with Edmonton city planners to smooth over the public notice requirements for an “occupancy” permit. Everyone was busy bringing Ms Redford’s dream to fruition. The total cost was $740,000. And it was all coming out of the taxpayer’s pocket.

At some point prior to Nov 15, 2012 Infrastructure Minister Wayne Drysdale learned about the Premier’s Penthouse (it’s not clear from whom or how) and did something (it’s not clear what) and as a result of these actions (whatever they were) it was his “understanding” that the Premier’s Penthouse would be replaced by two boardrooms and additional hosting space.

Hay Adams Hotel

On Dec 2013 Mr Drysdale and Mr McIver switched jobs…thank god or the contractors would soon be putting the finishing touches on a butler’s pantry for a premier who is no longer in public service.

Mr McIver moved to Infrastructure and Mr Drysdale moved to Transportation. Someone (again) informed the new Infrastructure minister, Mr McIver, about the Premier’s Penthouse. This thing was like a zombie that refused to die 14 months after it had been killed by Mr Drysdale.

Mr McIver visited the site, confirmed that work was ongoing and put a stop to it. Apparently the Premier’s office did not push back.

A nonexistent “system” of checks and balances
Now this is where it gets interesting.  According to Mr Lukaszuk, then the deputy premier, no one in caucus had any idea that Ms Redford had ordered the Premier’s Penthouse. The fact that this exposes a glaring lack of checks and balances seems to have gone right over Mr Lukaszuk’s head. In his view: “If one really goes out of their way and chooses to break the rules, they will do so—but usually the system will catch them—and this is a prime example of that.”

What nonsense!  Ms Redford commissioned her penthouse in Jan 2012. The change orders, emails, visits from the Premier’s staff, whatever, that triggered these renovations continued to flow unchallenged for two full years.

Mr Drysdale

There was no “system” in place to catch a breach of process that earmarked $740,000 in taxpayer dollars for the Premier’s personal use. There was no “system” in place to ensure that a direct order from a cabinet minister, Mr Drysdale, was indeed carried out. Lastly, there was no “system” in place to enlighten Mr Drysdale and/or a small group of cabinet ministers that an unauthorized construction project had not been terminated after he’d issued the “tools down” order because according to Mr Lucaszuk, no one in caucus knew about the Premier’s Penthouse until they learned about it from the CBC.

And that, my friends, is frightening.

The PC government may think it’s running a “$40 billion corporation” but the Federal Building renovation project demonstrates that the MLAs we’ve entrusted to make prudent expenditures on our behalf are not capable of running a hot dog stand.

If the government were a corporation its board of directors would demand an audit (and we should demand one here) and fire the executives in charge of a project that came in $100 million over budget and 4 years late.

But Albertans are coping with a government, not a corporation.  We don’t have the luxury of firing the PC cabinet ministers responsible for the Premier’s Penthouse.  But in 2016 we will have the pleasure of hanging a sign on the newly renovated Federal Building.  It will say “Under New Management”.  Oh Happy Day!!!

Posted in Politics and Government | Tagged , , , , | 38 Comments

Thank You Alison Redford

Posted on March 23, 2014 by susanonthesoapbox

Alison Redford did two things right during her short stint as Alberta’s 14th premier.  She jumped before she was pushed and she implemented an expense disclosure policy that, like ball bearings underfoot, created chaos by exposing the PC government’s culture of entitlement in painstaking and petty detail.

The PC party was completely unprepared for the fallout.

Alison Redford jumps

The spotlight on Ms Redford’s lavish spending enraged Albertans and contributed to her hasty departure…but not before she landed in the Star Chamber and was subjected to the arrogance and stupidity of the PC party machine.

Let’s review:

Mr McCormick & Alison Redford

On Saturday, Mar 15, Redford was called on the carpet by PC party president Jim McCormick, and 50 PC directors for a four hour dressing-down.  She emerged, head held high, having agreed to change her behavior in accordance with a “work plan”.  Her grace under pressure triggered a standing ovation.

On Monday morning she shared the “work plan” with her caucus and that afternoon they gave her a second standing ovation in the Legislature.

On Tuesday Mr McCormick informed party members that the work plan “…isn’t meant to be a written document or a single solution.  It is about an improved way of working together to insure the members and your concerns are being heard directly by the Leader…I am proud of the history of our Party but am even prouder of what we’ll achieve working together going forward as a team.  I know our Leader shares this desire.”…

…and on Wednesday “our Leader” resigned.

What happened…?

Mr McCormick, in typical “old boy” fashion, gravely misjudged the premier, the MLAs, the constituency associations and Albertans in general.

Yes, a party is allowed to give its leader feedback, but a four hour pile-on is not only unprofessional; it’s bullying.  Instead of persuading the premier to accept a slow roll out the door (a la Ed Stelmach) in return for a plum posting (perhaps Alberta’s representative for “opening markets” in Singapore or San Francisco) Mr McCormick issued a very public “work plan”.

It was a clear vote of non-confidence.  It humiliated the premier and unnerved everyone else.  All hell broke loose.

Dissident MLAs refused to accept the “old boys” solution and met in smoke-filled rooms (well maybe not smoke-filled) debating whether to jump ship or ride it out.  Constituency association presidents planned to table a resolution demanding the premier’s resignation.

Premier Redford resigns

Most importantly, the public didn’t buy it.  Support for the PC Party continued to plummet, sinking to 19% last Wednesday.

And Ms Redford, being no dummy, resigned; but not before Mr McCormick further aggravated the situation by issuing sanctimonious statements in the press.

The “old boy” speaks    

With respect to the Dissident MLAs, Mr McCormick said “I don’t think people should be disciplined for their thoughts or expressing them.”* 

This was too much for Christina Rontynen, the president of a Calgary PC constituency association and political blogger.  She found Mr McCormick’s statement offensive.

Last March Ms Rontynen received a “Letter of Censure” from Mr McCormick for posting a blog about being invited and then uninvited to the 2013 budget lockup. He said that in her role as CA president he expected “mature contemplation and second thought prior to any communication that may reflect negatively on either the Party or our Leader” and that her blog crossed a serious line.

And yet a year later Mr McCormick in his role as PC Party President issued a “work plan” that reflected so negatively on his Leader that she faced a caucus mutiny.  This is more than offensive; it’s hypocritical.

A morally corrupt party

The culture of entitlement runs deeps in the PC government and its agencies.  The line between party business and government business no longer exists.

Premier Hancock

Party loyalists are rewarded for good service.  Former MLAs Lorne Taylor and Denis Herard are the latest examples—Taylor is going to the environmental monitoring agency and Herard landed at the WCB.

Messrs Hancock and Horner strenuously defend the use of government planes to conduct party business.  Mr McCormick, party president, says the party can force the premier (government) to fire her staff.  And the “work plan” created by the party guaranteed its members a right not enjoyed by other Albertans—a direct line to the party leader (who happens to be the premier).

The PC party has operated in an echo chamber for decades.  It hears nothing but its own voice.  It senses danger on the horizon but expects to save itself from annihilation by resorting to “old boy” parlour tricks.

In the next few months Albertans can expect to see:  (1) changes to the leadership selection process to favour an acceptable “old boy”—Doug Horner and Bill Smith, past PC party president, perhaps, (2) Ms Redford appointed to an international post to smooth over the bad PR created by Mr McCormick’s abysmal mismanagement of “the Alison problem” and (3) the marginalization of the Dissident MLAs   (Somebody has to take the fall for this mess and it ain’t going to be Mr McCormick!)

New leader, same old party

As we speak some starry-eyed PCs are debating whether to run for the leadership of the party.  The poor dears fail to realize that while their party was calcifying, Alberta changed—and not for the better.

Ralph Klein’s austerity measures have come home to roost.  Our children are packed into schools like sardines, surgeries are cancelled for lack of beds, seniors die from mistreatment, labour unions and universities are gutted and our health and environment are degraded because the government won’t enforce the law.

The government says Alberta is having a banner year…and yet we’re billions of dollars in debt.

The old PC government, under the new leader, will do what it always does—slide the problem under the rug or hand it off to the private sector.

T – Rex

But that doesn’t cut it anymore.

Remember that scene in Jurassic Park where the T-Rex is chasing our hero in an open jeep and he looks in the rear view mirror and sees this: “Objects in mirror are closer than they appear”.

In 2016 the PC party will discover a T-Rex in the back seat…and Alison Redford put it there.

Thank you Alison Redford!

*Calgary Herald, Mar 19, 2014, A4 

Posted in Politics and Government, Uncategorized | Tagged , , , , , | 56 Comments

Alison Redford: The Puppet Premier?

Posted on March 18, 2014 by susanonthesoapbox

On March 17, 2014, following Premier Redford’s tearful introduction of her daughter Sarah to the Legislative Assembly, the ND Opposition leader Brian Mason rose to ask the Premier a critical question:*

“I regret having to ask this question, but it must be asked.  To the Premier: do you have enough support to keep governing?”

The government side of the house lept to its feet in a standing ovation; Ms Redford smiled and said:   “Well, Mr Speaker, all I can do is thank the hon. Member for his question.”

Mr Mason continued:  “The Premier says that she was given a work plan by the PC executive.  If so, Albertans want to know how this plan will influence the actions of the government.  To the Premier:  will this work plan affect in any way what this government does or how they do it?

Great question Brian!

The Premier offered a bizarre response.  “I’ll tell you Mr Speaker, that every single day that we work as a caucus, we work to make things better for Albertan’s.  That’s what we do as members of the Progressive Conservative Party, that’s what we’ll continue to do, and as we continue to work in alignment, that’s what allows Alberta to continue to grow.”

The work plan

Is it just me or is anyone else troubled by the fact that Alberta’s destiny lies in the hands of 52 unelected Albertans who happen to be members of the PC board of directors and not the 87 democratically elected MLAs (58 of whom happen to be PC party members) charged with representing the views of their constituents?

These are not the feverish ramblings of a paranoid mind.  The yet-to-be-developed work plan is described as a way to deal with issues from the party perspective and the premier’s perspective.**The Premier shared the work plan with her caucus on Monday morning.

While the PC party is within its rights to issue the PC party leader a work plan;  the PC party leader in her role as Premier has no business sharing the work plan with her caucus in the Legislature because the party leader’s work plan is party business, not government business.  In doing so Ms Redford and her caucus once again violated the boundary between partisan politics and government.   

On the other hand, if the work plan slops over into Ms Redford’s role as premier it is indeed government business and (consistent with Ms Redford’s promise of transparency) must be posted on Ms Redford’s website.  At least then we’ll be able to distinguish between actions she takes as government leader versus those she takes as party leader.  (For example if the PC party wants her to cut back on international travel we’ll know why she’s no longer going to Washington to promote our environmental record.)

Who is pulling the strings?

At the same time Ms Redford was losing track of which hat she was wearing in the Legislature, party leader or premier, Donna Kennedy-Glans announced that she was quitting the PCs to sit as an independent.  Why did this up and coming cabinet minister throw in the towel?  She says she was “increasingly convinced that the elements of this 43-year old government are simply unable to make the changes needed.”***

The spectacular PC party/government dust-up has made one thing perfectly clear.  This  government answers first to the “elements” that Donna Kennedy-Glans describes as people who believe that “because of their role in the party, they have some special voice or some special place”.**** Those of us without a special role in the PC party are so far down the priority list that we’re practically invisible.

To my mind this smacks of Tammany Hall, the powerful political machine that controlled the city of New York for almost a century.  We’ve waited almost 50 years to make a change, let’s not wait another 50 to replace our government for one that isn’t a puppet on a string.

*Hansard, Mar 17, p 255

**Calgary Herald, Mar 17 A4

***Calgary Herald, Mar 18, 2014, p A5

****Calgary Herald, Mar 18, 2014, p A4

Posted in Politics and Government | Tagged , , , , , | 31 Comments

TransAlta and the Court of Public Opinion: A $66 million fine or multimillions in profits?

Posted on March 16, 2014 by susanonthesoapbox

Last month TransAlta kicked a damaging allegation into the court of public opinion:  did it manipulate the electricity market by improperly shutting down six power plants during peak demand hours in order to jack up power prices and make millions in the process?

There are only two things the court of public opinion needs to know—what did TransAlta do and was this illegal?  Judge for yourself.

Market manipulation or the trifecta? 

TransAlta is a multibillion dollar company that owns power plants in Canada, the US and Australia.  It generates power for itself and for its competitors.  It sells its own electricity to the Alberta power pool (spot market) or under forward physical and financial contracts.  It’s one of the big boys.

In 2010 TransAlta’s Asset Optimization Group (which runs the plants) was moved to the electricity trading floor and began reporting to the VP Trading.*

The Asset Optimizers developed a strategy to boost electricity prices by shutting down plants that produced electricity for TransAlta’s competitors and filling this supply gap with TransAlta’s own electricity which was sold into the market through its trading arm.

Senior management said make it so.

So the operations guy, Nathan Kaiser, passed along non-public outage information to the head trader, Scott Connelly, who used this information to buy and sell power in the market before the outage information was passed along to the rest of the players.

TransAlta shut down six plants at peak demand hours over 11 days between Dec 2010 and Feb 2011.  The Feb 2011 shutdown triggered an energy emergency alert requiring all available generators to provide electricity to the grid in order to avert rolling blackouts.**

And TransAlta hit the trifecta:  (1) it prevented its competitors from buying electricity it generated on their behalf by shutting in their PPA supply, (2) it created a power shortage that jacked up the pool  price and the price of futures contracts and (3) it sold its own electricity into the pool and forward markets at substantially higher prices, making millions in the process–$6.69 million in profit after the Dec 2010 shutdowns and $8.5 million in three days after the Feb 2011 shutdown.**

TransAlta’s argument

TransAlta, Mr Kaiser and Mr Connelly deny that they’ve done anything wrong.  In fact they say they complied with the MSA’s guidelines which allow power generators to “economically withhold” electricity from the market in order to boost electricity prices.  Further they argue that the MSA is trying to change the rules of the game retrospectively and this is unfair.

Sundance Coal Fired Plant

Deregulating the electricity market

Alberta is one of only three jurisdictions on the planet that deregulated its electricity market (the other two are Texas and Australia).  The government designed the unregulated market by applying its usual “consult with stakeholders” and “trust industry” strategy.  Perhaps not a brilliant idea in hindsight.

Instead of creating legislation that set out a detailed “thou shalt not” list of anti-competitive behaviors, collusion and improper conduits from the operational folks to the marketing team, the government was satisfied with a simple statement in the governing legislation and regulations that said the legal standard through which all market activity will be judged is FEOC—the “fair, efficient and openly competitive operation of the market”.*** 

The MSA consulted with the stakeholders to set some parameters on the terms “economic withholding” and “fair”, “efficient” and “openly competitive” and in the end determined that the reasonable business person test would apply.

The MSA takes the position that no reasonable business person would consider TransAlta’s conduct to be accordance with FEOC.  Certainly the complainant who was shut-in didn’t think it was kosher!

The MSA says that the FEOC principle qualifies the meaning of “economic withholding” so that while it’s permissible to raise or lower electricity prices by shutting plants for operational reasons it is not permissible to shut-in plants to benefit a company’s global trading portfolio.

The court of public opinion decides…

If the MSA complaint is upheld, TranAlta could face fines in the range of $66 million or higher ($1 million/day times 6 plants times 11 days).  This will impact TransAlta’s earnings but more importantly blot TransAlta’s reputation.

The MSA indicates that Messrs Kaiser and Connelly could face similar fines, however this is unlikely, particularly given the MSA’s request that the AUC ban Mr Connelly and Mr Kaiser from trading in the physical and financial energy markets in Alberta for three years.

Regardless of what the AUC decides, its decision will be appealed, if for no other reason than it’s become a political football.

So how does the court of public opinion rule?  Should we fine TransAlta $66 million and strip Messrs Kaiser and Connelly of the ability to trade for 3 years or should we blame the PC government who created a dysfunctional deregulated market that benefits the power generators at the expense of the consumers?

Far be it from Ms Soapbox to bias your thinking…but in my view the PC government’s experiment in deregulation is a colossal failure that enabled sophisticated generators like TransAlta to take advantage of “loopholes” that leave Albertans stuck with higher electricity costs.  TransAlta and the government are equally at fault.  TransAlta should be fined $33 million and the PC government should be removed from office as soon as possible.

*Market Surveillance Administrator, Notice of Request for Hearing, Feb 2014

**Calgary Herald, Mar 1, 2014, A4

***Electric Utilities Act, s 6; Alta Reg 159/2009

Posted in Energy & Natural Resources, Politics and Government | Tagged , , , , , | 21 Comments

Alberta’s “Traffic Court Reform”: One Step Closer to a Police State

Posted on March 13, 2014 by susanonthesoapbox

Justice Minister Denis is touting “Traffic Court Reform” as a “citizen-friendly” dispute resolution process to “resolve” traffic tickets.  It’s also the first step into a quagmire that erases our civil liberties in order to save money (and help the minister meet his 2014 budget targets).

The Justice minister requested “feedback” on the four principles underlying his draconian proposal.  I sent him the following response:

Principle 1:  The premise underlying the request for feedback is flawed.  It is based on the assertion that traffic matters should be removed from the traditional court system and into an administrative process in order to save money and free up court time for more serious matters.

Justice Minister Denis

Cost reduction and better access to the courts are laudable goals but unrelated to the real question which is should traffic matters be removed from the traditional court system (and all the protections that it affords) and turned over to an administrative body about which we know absolutely nothing.    

Principle 2:  An administrative process is not efficient and accessible if it coerces citizens into unwittingly giving up their constitutional right to a fair trial.  The so-called “early payment” option is not a convenient payment scheme but a mechanism to encourage citizens to plead guilty even if they’re innocent in order to save a few bucks.

Calling it a “discounted fine” is misleading.  Citizens are being deceived into thinking that the “discounted fine” is akin to the early payment option on a parking ticket.  They don’t understand that this is, in effect, a guilty plea that will go on their record and may result in demerit points and potentially count against them under a number of sections of the Traffic Safety Act.

The right to “challenge” a ticket before an adjudicator who will either “confirm” or “cancel” the ticket is not the same thing as the constitutional right to a fair trial conducted by a legally trained prosecutor in front of a legally trained judge.  No amount of “training” can equip an adjudicator to understand the law, rules of evidence, and principles of natural justice as comprehensively as three years of law school and countless years of legal experience.

Principle 3:  The right to a fair trial is further compromised by the fact that the citizen can and will be convicted on the strength of a police report.  He has no right to cross examine the police officer who wrote the report because the officer is no longer required to attend.  He can’t discuss the facts with the prosecutor (who may decide to dismiss the case for lack of evidence) because the prosecutor is no longer required to attend.  The citizen’s fate rests on the scribblings of a policeman and nothing more.

Principle 4:  The administrative process will be governed by the rules of natural justice, but the adjudicator has no latitude to make “a deal”.  All he can do is “confirm” or “cancel” the ticket.  How does this comply with the rules of natural justice and equity which allow for judicial discretion?

Furthermore, what is the applicable standard of proof?  Will the adjudicator “confirm” or “cancel” based on his understanding of the balance of probabilities, beyond a reasonable doubt, or some cockamamie standard dreamed up by the Justice department?  Incidentally the use of the terms “confirm” and “cancel” for “guilty” and “not guilty” further misleads Albertans into underestimating the impact of this proposal on their civil rights and freedoms.

I am saddened that the Justice minister would propose this misguided and frankly unconstitutional “solution” to ease the rising cost of maintaining our criminal justice system.

Further I am disappointed that the minister would resort to such a faulty feedback process to justify his attempt to slide into law a process that violates the rules of natural justice and a citizen’s constitutional right to a fair trial.

I urge you to reconsider this misguided proposal.

Sincerely, blah blah blah

Take a stand

I’ve practiced law for over two decades.  A good part of my practice involves working with administrative/regulatory bodies including the securities commission, the NEB and FERC.  All of these regulators can impose penalties for misconduct, but none do so at the expense of a citizen’s right to a fair trial.

Send an email to traffic.reform@gov.ab.ca.  Tell them that you oppose Justice Minister Denis’ proposal to reform Traffic Court because it requires citizens to give up their right to a fair trial and as such is unconstitutional.  It’s time to stand up against the PC government’s unrelenting assault on our civil liberties.

We may not succeed but we won’t go down without a fight!

Posted in Crime and Justice, Politics and Government | Tagged , , , | 17 Comments

Breakfast with Hillary Clinton

Posted on March 9, 2014 by susanonthesoapbox

Hillary Rodham Clinton was in Calgary last week to give the keynote address at a breakfast meeting of 2500 Calgarians who paid about $500 to hear her speak.  Luckily my friend, the Zen Banker, invited me to attend as her guest.

Hillary is like the Chloe Diamond—brilliant, mesmerizing, multifaceted and years in the making.  Agree with her or not, it’s critical that Canadians understand how the woman who may become the 45th president of the United States views the world and our little part in it.

Here are the highlights:

Energy is the key:  Energy is at the “intersection of economic prosperity, national security and diplomacy” and Canada and the US need to work together to utilize energy in a diplomatic way. 

Energy can be used diplomatically in two ways.  It can advance “strategic interests”.  For example, US-led sanctions forced Iran to the negotiation table to discuss dismantling Iran’s nuclear program.  Or it can be used to “intimidate”.  In 2009 Gaz Prom shut off the natural gas supply to the Ukraine when a price dispute became political.

One can’t help but notice that characterizing the use of energy as “strategic” or “intimidation” depends on which country has its hand on the spigot.                     

The Ukraine:  Hillary attributes Putin’s harsh reaction to the Ukraine to his desire to rebuild the “Soviet Empire”.  Russia is reaching a turning point.  Putin must choose between (1) working with the US, Canada and the EU and using Russia’s natural resources and educated work force to create a peaceful and profitable future or (2) pursuing his dream of the Soviet Empire and perpetuating the corruption that creates wealthy oligarchs and impoverishes the middle class.

Israel and Palestine:  Hillary strongly supports the “two state solution” to resolve the Israeli/Palestinian conflict.  This is in Israel’s best interest because it recognizes the threat of demography (many Palestinians live in Israel) and the threat of technology (newer long range rockets that will pierce the “Iron Dome” over Israel).  Nevertheless progress will be slow.

Climate Change/GHG:  Hillary signalled very strong support for joint Canada/US efforts to reduce green house gases and tackle climate change and referred to the work the Clinton Foundation is doing with 40 of the world’s largest cities to reduce greenhouse gas emissions.

(The Clinton Foundation has a number of climate change initiatives including 1Sky which supports an 80% reduction in pollution levels by 2050). 

Hillary said that 50% the US’s new energy capacity came from renewable energy.  If this is true it  would explain why the US is not convinced Canada is doing everything it can to exploit the oilsands in an environmentally responsible manner.

Keystone XL:  Finally, the question we’ve all been waiting for.  Moderator Frank McKenna delicately explained that the ongoing uncertainty over the future of Keystone XL is creating great angst in Canada.  Hillary was unrepentant.  The delay was warranted.  Keystone XL crossed an international border.  As such it fell to the State Department (which she led for four years) to review the pipeline and its impact on climate change.

Hillary really couldn’t comment because the decision rested with John Kerry, however she said it was  important not to let that decision—whatever it may be—colour US/Canada cooperation on environmental matters.  Hmmmm….

US Politics:  Hillary acknowledged that the US government had become more dysfunctional, but reminded us that the US has always had a “rambunctious boisterous political system”.  Well, I guess that’s one way to look at it. 

Nevertheless, extreme voices were getting more attention and the refusal to compromise was rooted in the promotion of political, commercial and personal agendas.  Citizens could break through this logjam by refusing to vote for “no compromise” candidates who undermine the basic principles of democracy.

The Presidency: Will she or won’t she?  Not surprisingly Hillary dodged the question, simply saying that this was not the time for announcements.  Her focus would be to help the country get its confidence back, to compromise on issues in order to move them forward and to make a contribution.

And with that she thanked us for our kind wishes and left the stage.

Who is Hillary?

Hillary Rodham Clinton is a perplexing personality.  She cares about social issues like the environment and healthcare (remember her unsuccessful attempt to reform the US healthcare system in the first 100 days of her husband’s term).

At the same time she’s the consummate politician.  She lost the presidential nomination to Obama…and then rose from the ashes as his secretary of state.  She’s staying in the public eye by making speeches all over the globe (at $200,000 a pop).* She recently hired Obama’s chief electoral strategist and will embark on a book tour this summer to promote her new book about her experience as secretary of state.*  Make no mistake; the presidential campaign is already underway.

She’s also funny.  Frank McKenna ribbed her about the US hockey team losing to Canada because the Americans erected a billboard at the border saying “Loser gets Bieber”.  Later he mentioned that Ted Cruz had been born in Calgary.  She retorted that given the choice, she’d take Bieber.

Which got me thinking…given a choice between Alison Redford and Justin Bieber, I’d take Bieber, in a heart beat.

*The Globe and Mail, Mar 7, 2014, A11 

Posted in Energy & Natural Resources, Environment, Politics, Politics and Government, Rich and/or Famous, Uncategorized | Tagged , , , , , | 14 Comments

The Edelman Trust Barometer: Who do you trust?

Posted on March 2, 2014 by susanonthesoapbox

The 2014 Edelman Trust Barometer is here and it’s good news—unless you work in government or business in which case you’re facing what Edelman delicately calls “a significant trust deficit”.

Edelman is a global public relations company that surveys trust levels across 27 countries by asking the public who they trust and how much they trust them.  It surveys four sectors—non-governmental organizations (NGOs), business, media and government—and assigns each a trust rating.

It sucks to be government

Alberta Legislature Building

The only sector Canadians trust less than business is government.  The Edelman Trust Barometer clocked trust in government at a pathetic 51%.  (Mind you it could have been worse; the Americans gave government a score of 37%).  The media ranked slightly higher at 58%.  Business came in at 62% and NGOs retained their “most-trusted” position for the seventh year in a row with a 67% trust rating.

Canadians are getting increasingly nervous about the government’s lack of regulatory oversight over business.  Fifty-four percent of Canadians say there is not enough regulation in the energy sector and want even more protection from the negative consequences of unbridled resource development.  This is an 11 point increase over last year.

Is this lack of trust justified?

Are the “drill baby drill” Albertans as fussed about a lack of regulatory oversight as the rest of Canada?  They should be.  Look no further than the Alberta Energy Regulator’s (non) response to CNRL’s Primrose problem.

Bitumen has been seeping to the surface at CNRL’s Primrose site since 2006 but it wasn’t until July 2013 that the Regulator finally ordered CNRL to suspend high pressure steaming, enhance monitoring, accelerate cleanup and drain a 53 hectare lake to mitigate the impact of the bitumen release.

In light of these regulatory restrictions CNRL decided to convert 80 high pressure steam injection Primrose wells to low pressure steamflood wells.

CNRL has consistently downplayed its difficulties at Primrose; however Peters & Co, a major investment house, is not so sanguine.  Peters says “the single biggest issue facing the company is at Primrose and this will…take time to resolve”.  Consequently Peters has taken a more cautious view of the company’s expected performance than the company itself.*

It’s a sad statement when an investment banker is more frank about a major energy player than the government that regulates it.

Who do we trust?   

Edelman surveyed who we trust to tell us the truth and make ethical decisions.  The results for government leaders and CEOs were abysmal.  Government leaders scored a 36% trust rating.  CEOs were marginally better at 43%.

Instead of turning to those with firsthand knowledge of the industry and how it’s regulated we turn to academics (67%), technical experts (66%), people “like ourselves” (62%), financial/industry analysts (53%), NGO representatives (52%) and regular employees of the company (52%).

Mr Tillerson

If the public loses faith in CEOs like CNRL’s boss who go to great lengths to promote the company’s interest, what happens when the company’s interests run counter to the CEO’s interests?

Consider the case of Rex Tillerson, CEO of ExxonMobil, the largest fracking company in the US and a major player in Alberta.  Mr Tillerson owns an opulent home on an 83 acre spread in Texas.  The town plans to build a 160-foot water town in the area to supply water to nearby fracking operations.  Mr Tillerson says he’s not opposed to fracking but he is opposed to the increased traffic and unsightly water tower which will negatively impact his property value.  So much so that he joined in a lawsuit to stop the water tower in its tracks.

Mr Tillerson makes over $40 million a year.  It’s fair to say that he can take the hit on his property value more easily than the rest of us.  However he doesn’t see it that way.

Well here’s how we see it.  A water tower or fracking operation is fine when it’s in public’s backyard, but it must be stopped at all costs when it’s in the CEO’s backyard.  How’s that for hypocrisy?

What does this mean for Albertans?

Edelman issued a pointed warning that signals the end of Ms Redford’s “trust industry” strategy.  He said:

“Government is the least trusted institution and there is no business besides energy that relies more on partnership with government to get things done in terms of basic operations…The suboptimal level of trust creates a difficult dynamic — a potentially crippling one.”

A “potentially crippling” lack of trust is not necessarily a bad thing for Albertans if it puts the brakes on reckless development and insufficient regulatory enforcement and encourages the other political parties to formulate an energy policy that is more nuanced than the brainless “rip and ship” policy we’ve endured to date.

These political parties will unfurl their energy policies and fiscal and social policies soon.  It’s likely that these policies will sound alike (no one campaigns on being fiscally imprudent and socially irresponsible, do they?).  And in the end it all boils down to trust.

So tell me.  Who do you trust and why?

***Daily Oil Bulletin Feb 28, 2014

Posted in Energy & Natural Resources, Politics and Government | Tagged , , , , , , , , | 18 Comments

Where are the Ethical Lawyers?

Posted on February 23, 2014 by susanonthesoapbox

In the last three months Albertans have witnessed a shocking display of raw power.  The Redford government calls it “delivering the responsible change Albertans voted for.”  The rest of us call it the abuse of majority power to crush the rights of environmentalists, land owners and labour unions.

Black November

In Nov 2013 the Supreme Court of Canada…got that…the Supreme Court of Canada…struck down Alberta’s Personal Information Protection Act in its entirety because it prevented a union from videotaping replacement workers crossing a picket line and posting the video on line.  The Court said this infringed the union’s Charter right to communicate its cause to the public.

Within days of receiving the Supreme Court of Canada’s decision the Redford government slammed through legislation that arguably violates the unions’ Charter rights…again.    

Either they’ve learned nothing or they really don’t care.     

On Nov 27 the government introduced Bill 46, the Public Service Salary Restraint Act, which imposed the 2011 Collective Agreement (with some minor salary tweaks) on the Alberta Union of Public Employees (AUPE) if it didn’t settle with the government by Jan 31, 2014.

Most importantly, the Act vapourized the compulsory arbitration rights Peter Lougheed granted to the unions back in the halcyon days when progressive conservatism actually meant something.

Then just to make sure everyone understood who carries the truncheon here, the Redford government limited debate, invoked closure and rammed Bill 46 into law less than a month after it hit the House agenda.

The AUPE sued, arguing that Bill 46 breached the Charter.  It requested an injunction to suspend the law and allow the compulsory arbitration process to continue.*

Justice Thomas granted the injunction, crisply stating that Bill 46 “guts the bargaining process” by removing the only leverage the union has—the right to compulsory arbitration.  Furthermore, Bill 46 violates section 2(d) of the Charter which protects the union’s right to “good faith bargaining”, something that had been sorely lacking on the government’s part.

The government is “disappointed” and will appeal the decision.  This case, like the last one, will go all the way to the Supreme Court of Canada.

For once it’s not Mr Lucaszuk’s fault

Some have tried to pin this on Jobs, Skills, etc and so on Minister Lucaszuk, a man known for his lack of empathy toward unions, higher education and anything else that refuses to roll over when they see him coming, but this time it’s not his fault.

Minister Denis

Vetting proposed legislation is a legal function.  In addition to a caucus full of QCs, the Redford government has a flotilla of legal advisors starting with Justice Minister Jonathan Denis.

One of Justice Minister Denis (clumsily worded) goals is to provide “strategic legal advice and counsel to government to achieve Government of Alberta outcomes to achieve their objectives through provision of effective legal and related strategic services.”

Mr Denis achieves this goal by relying heavily on his Legislative Counsel.

But if Alberta’s Legislative Counsel is governed by the same policies that govern their federal counterparts, we’re in terrible trouble.

The sacrifice of Edgar Schmidt

Edgar Schmidt, a federal Department of Justice lawyer, sued the Minister of Justice and his Deputy Minister for violating their obligation to examine proposed legislation and advise the House if it’s inconsistent with the Charter and Bill of Rights.**

The minute Mr Schmidt filed his claim he lost his job and is now on a reduced pension.

The Justice Minister’s defence is that under departmental policy if the proposed law has at least a 5% chance of surviving a court challenge he has no obligation to alert the House that the law may be illegal.

Or to put it another way, even if a proposed law has a 94% chance of being struck down for violating the two Acts that protect our fundamental rights and freedoms it will be sent to the House and (given the tyranny of the majority) proclaimed into law.

As a result of this policy, the burden of vetting bills to ensure that they’re legal falls to the people.  It is our job to ferret out legislation that breaches our fundamental rights and hire lawyers and file lawsuits to get that legislation overturned in a court of law.  Thanks to Mr Schmidt’s sacrifice we now know that.   

The canary in the mineshaft

We won’t know with certainty whether Bill 46 violates the Charter until the Supreme Court of Canada tells us so.  We may never know whether Justice Minister Denis has adopted the 5% Rule to slide unlawful bills into law by virtue of his government’s majority power.

But we do know this:  Government lawyers, like all lawyers, are bound by a duty to give honest advice (even if their clients don’t want to hear it).  Government lawyers, like all lawyers must ensure that their clients don’t unlawfully inflict harm on innocent citizens.

In essence government lawyers are canaries in the mineshaft.  If they are aware of policies that result in laws that damage our fundamental rights, they need to speak up.

It’s a matter of conscience.

*Alberta Union of Public Employees v Alberta 2014, ABQB97

**National Nov/Dec 2013 p 18

Posted in Crime and Justice, Politics and Government | Tagged , , , , , | 35 Comments