Non-compliance is the solution

The caveat to non-compliance is that the BIA Board should be prepared to defend its self-determination.

The following are facts that should be made known to all those involved.

1          ON1Call has been foisted unto the Toronto BIAs with the connivance and approval of John Kiru of TABIA and Mike Major of the Office of Economic Development (OED).

2          About 20 months ago, two staff members of ON1Call attended a meeting of about 20-30 BIA representatives at TABIA’s office at the Exhibition grounds. The meeting was called by Kiru and the ON1Call staff pitched their case.

3          Discussion followed which included a staff member of OED, Mr. Major and Mr. Kiru of TABIA.

The bare essentials were that;

  1. This was a new project
  2. It was a legal requirement
  3. Another BIA (Bloor-Yorkville?) was identified as an ideal cooperative compliant
  4. That particular BIA had hired a staff person to deal with the ON1Calls (at $30 K annual salary)
  5. Both Kiru and Major strongly endorsed compliance of all BIAs (implying there was no alternative)
  6. Both Kiru and Major promised to seek the removal of this burden from the BIAs in the near future
  7. Until such relief, BIAs were cautioned to comply and, in the event of non-compliance, those who refused would receive no support from the OED or TABIA.

That is a short summary of how this burden was placed upon the BIAs. Since then, no success has been seen if Major or Kiru attempted to deliver on their promises.

What was not revealed was that there was no statutory requirement. The provincial legislation driving this matter had not been designed to burden the BIAs. That was the interpretation of the staff at ON1Call because it suited their convenience.

Having convinced Major and Kiru to endorse this convenience, ON1Call co-opted both these individuals to “sell” it to the BIAs. Those BIAs attending the aforesaid meeting were presented with a fait accompli and never considered refusing this vexatious burden.

Another fact that was not revealed was that no other municipality in the province had thrust this burden unto their BIAs. Only Toronto.

I had been assigned by my BIA to ‘deal’ with this matter. I made it clear to ON1Call that I was the contact person. My initial position was to refuse to register with the ON1Call program. (Registration puts you on their radar with acceptance and compliance being presumed).

Thereafter, I have refused to provide ON1Call with any information for any of their requests.

This has resulted in several complaints and eventually, threats of further action.

Persecution, but No Prosecution

The most recent exchanges between myself and ON1Call resulted in my being informed by Mr. Waugh that having refused to comply with ON1Call requests, I was required to attend a Mandatory Meeting to be held in Guelph.

The Mandatory Meeting was intended to put me in my place, with various threats of punishment in the courts - unless I did the ‘right thing’ and complied with their bidding.

(Presumably, any refusal would result in my being shipped to Syria for rendition).

I informed the ON1Call staff, Steven Waugh and Robert Matthews (in Guelph) that I would be pleased to attend the ‘Mandatory Meeting’ provided they covered my ‘Mandatory Expenses’ to Guelph by ‘Mandatory Cheque’.

The ‘Mandatory Cheque’ (as expected) did not arrive. I presume the ‘Mandatory Meeting’ proceeded without ‘My Mandatory Presence’.

At this point, Mr. Waugh, hauled out the big artillery and had a lawyer, Shanon Grauer, send me a registered letter quoting the legislation, the Ontario Underground Infrastructure Notification Act 2013, otherwise referred to as Bill 8.

Grauer noted that I was “offside” the Act. This was a careful wording intended to imply I was acting illegally - but without saying the word ‘illegal’. That’s because I was not acting illegally and the lawyer had enough sense not to make that accusation. This is known as ‘bluff’ in poker.

Grauer went on to request that I meet with Waugh at their downtown offices within 30 days, otherwise, failing to meet would result in a formal hearing proceeding against the BIA. The letter was dated May 3, 2017.

Expecting a refusal to my response, I offered to meet at a location and a date suitable to me in Toronto. There was no reply.

The whole exercise was a gambit intended to intimidate the uninformed and force compliance. No formal hearing was scheduled, nor will there be. For several reasons which I made clear to Grauer in my reply; pointing out the following…

  • The legislation (Bill 8) requires all ‘entities’ which own underground ‘assets’ to provide information as to the locations (locates) of where these assets are buried.
  • Our BIA installed some underground wiring for a streetscape project. That wiring and all else that may have been installed, is now City property (Public Realm).
  • These installations are fixtures which belong to the City, not our BIA. Once permanently installed, these installations (assets) become fixtures and revert to the possession of the City. I noted to Grauer, the distinction between “fixtures” and “chattels”. The City, in trying to dump this matter unto the BIAs, claims to Grauer that the BIA owns these ‘assets’. That is an incorrect (and convenient) opinion of some non-legal city staff.
  • Therefore, the City is the ‘entity’ that the legislation defines. It is not the BIAs.
  • Toronto is the only city in Ontario which has downloaded this matter to the BIAs. All other municipalities deal with ON1Call requirements directly.
  • Our BIA is mandated by Chapter 19 of the Toronto Municipal Code. We are created to help improve the commercial interests of our members and enhance the retail neighbourhood via street improvements. Nowhere in that Code is there a mention of ON1Call duties and requirements.
  • Major and Kiru accepted this burden for the BIAs without prior consultation or agreement. They never had authority to act in this manner.
  • Our BIA has withdrawn from membership within TABIA. Membership in TABIA is completely voluntary. We simply stopped, without fanfare or announcements.
  • Accordingly, our BIA is not bound by any membership in TABIA, nor does it come under TABIA jurisdiction. Furthermore, Mr. Major (of OED) has no authority over our BIA and cannot bind it to any ON1Call requests.

In conclusion, I note that we are now in August of 2017 - over 90 days have passed and the threat of a formal hearing has not materialized. Nor will it.

I have heard rumours that one or more City Councillors will place a motion before City Council to remove this odious burden from the BIAs. Until then, I suggest each BIA Board shelve their participation and unnecessary costs until further notice.

It’s unfortunate that instead of protecting BIAs, TABIA chose to throw them under the bus. It’s also notable that BIAs are not encouraged to communicate or consult with each other.

There should be common ground and greater ties created.

Submitted by Styli Papatheodosiou.

Editor’s Note: ON1Call update… 

  • Councillors Davis and Layton proposed that the City consider assuming responsibility for this matter, since it already had a service in play for locates which were required throughout the City.
  • The motion was referred to the Committee of Public Works and Infrastructure which forwarded it to City Council for consideration. (October 2, 2017)
  • City Council amended the motion and requested that the General Manager of Economic Development and the General Manager of Transportation Services to provide Council with options on addressing this issue.
  • The report from Mike Williams of Economic Development will be tabled at the meeting of Public Works and Infrastructure Committee to be held on October 18, 2017.

 

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