Rhino's Ramblings - Semantics And Legalese

Robert Thomas - Opinion\Commentary

Over the past couple of Council meetings there has been debate when it comes to the use of words in motions and for many people who have spoken to me about it they don’t see the point in it all. One about a bell, the other is about development outside Moose Jaw.

“I just don’t get it how can one stupid word make a difference?” is what I was asked at coffee last week.

Although this is an opinion column and I do not know all the machinations going on in Council’s heads, nor really want to honestly, what I did was a little bit of research to help explain why the seven at the corner of Fairford and Main would seemingly spend so long discussing semantics.

The question may well be asked: what is something most university students despise learning ending up at a Moose Jaw City Council meeting?

For many it all seems like a matter of Common Sense as Mayor Fraser Tolmie seemingly framed it. The City is only responding to a request from the Province and nothing more than that is what the Mayor responded. This is not establishing a policy or a legal position.

Inserting the word “direct” into the motion where the City informed the Province they would not be providing sewer and water services to a proposed new subdivision of land is opening a potential legal kettle of worms for the City is the position Councilor Brian Swanson took in the debate.

Swanson went on to mention he had already brought this all up in-camera as in behind closed doors. It has to make you think if this was handled behind closed doors then why is it coming up again in front of the TV cameras? What is this really all about?

On one level it is all about Common Sense – Council and the City is not only saying they are not providing direct water connections to area developments. But it’s also about growing the tax base.

Despite the appearances Common Sense should prevail and the City was not stating a legal opinion but simply responding to the Province you need to ask could this later be construed as something different? If someone misunderstood the City's intentions regarding some future development – not this subdivision specifically - or even more sinister like twisted them with a lawyer employing their full powers of legalese could it cost the City at a later date?

The big comeback, and what the Mayor used to paraphrase, what about common sense?

And here is the legal problem when it comes to common sense, how do you legally define it? What is common sense for you and me is not common sense for the next person. It is all subjective.

Here is an actual example I can give you and it has to deal with a health and safety issue which ended up in front of provincial authorities.

In this instance there were three people working for a construction company erecting a metal building and it was raining. The location of the building was in a remote area and electrical power for the equipment came from a portable generator powered by gasoline. The employees on site were all working inside of the building.

Because it was raining the three employees felt the size of the building would be sufficient to ventilate the exhaust if they brought the generator inside. The employees were worried about water and electrical cords outside in a downpour.

The generator was covered with numerous c;early visible warnings from the manufacturer as well as employer warnings to never operate the machine in a confined space because it could cause harm or fatalities. The employees however had never been told not to operate the generator in a confined space or in a building. They also had never been instructed about electrical short circuiting due to the rain either.

The employees made a decision to carry the portable generator inside of the building to continue work because they did not want to miss a day and they worried about getting an electrical shock. They even documented their fears of electrical shocks in their safety meeting log.

The employees worked the remaining ten hours and then went back into town. Because they felt light headed and one was vomiting they went to the local hospital where the one employee was diagnosed with the effects of carbon monoxide poisoning and placed on Worker’s Compensation.

In the ensuing investigation and later response from the Province’s Occupational Health and Safety (OHS) office the company said the employees should have known better because it was clearly marked and visible on the generator and besides common sense should have prevailed.

In their response OHS replied since there was no indication the employees affected had ever been trained not to the bring the generators indoors or a confined space the company was in the wrong. The argument about “Common Sense” was immediately tossed based upon numerous sited - non OHS - court cases where it was found you cannot define Common Sense.

I use this example to illustrate an actual case where the Common Sense argument can easily be tossed out the door by something completely unrelated to the issue at hand. This is legalese.

What is Common Sense to you may not be the same to another individual it is really a subjective issue and concept. Everyone in many ways has their own definition of common sense.

So that is largely where Councillor Swanson is coming from in his legal dissertation in semantics. It is all about not giving a legal crack in the armour for others to use against the City.

But what is actually going on when it comes to providing water and sewer services outside the City? Why would the City truly care about it?

One issue has to deal with the cost of providing those services. It isn’t just a case of hooking up rural customers and sending them a bill it also deals with infrastructure and costs associated with it.

As rural user ship grows it means not only more wear and tear on infrastructure but it also means upgrades are necessitated for the system. New larger pipelines, reservoirs and pumps are required something up until recently the taxpayers of Moose Jaw were paying for.

The City addressed this somewhat in new proposed higher water rates to rural customers and 15 Wing Moose Jaw – although there is some debate about the proportion of the percentage increases.

But there is another issue here at play and that is are some developers side stepping the City's higher tax rates – by setting up in area Rural Municipalities - and then relying upon City services and infrastructure they don’t pay for.

Much of it is about the City of Moose Jaw being side stepped by new businesses and not growing the needed tax base to help cover the massive infrastructure upgrades necessary. But far more worrisome is the specter of existing businesses moving to the RM and setting up there to escape what some are calling excessive commercial property taxation in Moose Jaw.

It thwarts not only the efforts to grow the City's tax base but it also likewise increases the tax base of area RMs who have lower property taxes.

The only thing holding back even more moves into the RMs is what do you do for sewer and water services? They’re expensive to set up so the move is to piggy back off of the City.

This is where it erodes the efforts of the City to increase the tax base and ease the load individual property owners are paying to upgrade infrastructure. In many ways the RMs are the City's partners but also competitors.

This is what City Manager Jim Puffalt was eluding to when he said typical agreements between most cities and RMs or water coops ends at the city limits. There appears to be moves or at least considerations going on at City Hall to restrict and somehow dictate where and who gets access to Moose Jaw's water outside the city itself.

If you don’t believe me on this the issue came up at the April 9th, 2018 meeting of Council. If you go the video archive and then open the April 9, 2018 archive and advance to 2:18:30 mark it’s all there. Here is the link.

In that discussion Councilor Swanson states the water issue is all about high commercial tax rates in the City versus the RM of Moose Jaw. Plus by giving access to City water Moose Jaw is facilitating not just new but existing business to relocate elsewhere further eroding the City’s tax base.

“I believe there are others contemplating about doing this,” Councilor Swanson said at the time.

He would ask with the new corporate structure of the Buffalo Pound Treatment Plant did the City even have the ability to deny access to developments outside of the city who would benefit from the hundreds of millions the City had invested there.

“Without water these developments cannot occur…we are handing out water like it is water,” he said in April 2018.

So the discussion almost a week ago was not about semantics but rather about a policy and maintaining clarity in the wording to potentially prevent lawyers from using legalese to warp the issue. It is about growing the city but at the same time keeping what we already have and it not simply moving into the RM of Moose Jaw and setting up shop in a lower mill rate jurisdiction.

It is one debate Councilor Swanson won unanimously but the bigger issue likely is far from over.

moose jawFebruary 17, 2019