March 2, 2017

Nefarious Role of CCAA Court

Steelworkers Confront Wild West of CCAA


Nefarious Role of CCAA Court
Steelworkers Confront Wild West of CCAA
Canadians Oppose the Entitlement of Class Privilege

For Your Information
Justice Newbould In His Own Words

Nefarious Role of CCAA Court

Steelworkers Confront Wild West of CCAA

The financial oligarchy that controls the economy wants to dominate the working class without rules, negotiations, collective arrangements or any sense of equilibrium between the contending social classes. In this regard, the ruling elite have concocted a situation outside labour and pension laws and collective agreements where state-organized power dictates and enforces the demands of the oligopolies. This is the Wild West of the Companies' Creditors Arrangement Act (CCAA), which the Canadian working class totally rejects.

Those in control of the CCAA process, the presiding judge, monitor and others cannot or rather do not want to clarify the rules because they exist only to serve the narrow private interests of the oligarchs. In dismissing the appeal of Local 1005 USW to reinstate post-employment benefits brutally taken away from Stelco pensioners under CCAA, the Ontario Court of Appeal said bluntly without responding to any arguments, "It is rare that this court will interfere with a discretionary decision of a CCAA judge. Leave to appeal is denied." Well, the working class has something to say about state-organized "discretionary" attacks and is determined to interfere with them and hold governments to account.

Within this CCAA Wild West, steelworker union locals at the Stelco Hamilton Steelworks and Essar Steel Algoma in Sault Ste. Marie have been ordered to open their collective agreements. Those in control of the CCAA at Stelco want to codify within Local 1005's collective agreement the anti-retiree proposals of the U.S. Bedrock oligarchs who aim to seize control of Stelco in contradiction with all arrangements with the previous ownership groups and governments.

At Essar Steel Algoma, the oligarchs led by Deutsche Bank who have seized control of the CCAA process want to ram through concessions on both steelworkers and salaried employees including a 10 per cent wage cut. The oligarchs think they can pull a fast one submitting 40 demands for concessions while under CCAA dictate.

Steelworkers, salaried employees and retirees are showing tremendous resolve to defend their rights and are determined to defeat the CCAA conspiracy. Negotiating committee members of USW Local 1005 in Hamilton, led by President Gary Howe, journeyed the 741 kilometres north to Sault Ste. Marie to stand as one with their comrades at USW Local 2251 representing 2,100 Algoma steelworkers and USW Local 2724 representing 650 Algoma salaried employees. They held a joint press conference where they expressed their determination to resist the unjust and dictatorial Wild West of the CCAA. They are firmly united in standing for the rights of their members, pensioners and steel communities. They want a vibrant steel sector that serves Canadian nation-building and becomes a solid industry where workers provide enormous value for their communities, the broader economy and the well-being of the people and their society.

Executives of USW Locals 2251 and 2724 at Essar Steel Algoma and USW Local 1005 at Stelco
meet on February 27. At centre: Local 1005 President Gary Howe, Local 2724 President Lisa Dale, Local 2251 President Mike Da Prat. (D. Van Meer)

The following day on February 28, members of USW Local 2251 gathered in continuous meetings to discuss the situation and vote whether or not to give their executive a strike mandate to defend their rights. Local 2251 reports that 1,896 members participated in the discussions and cast a ballot, which is an all-time high for a strike authorization vote. Ninety-eight per cent voted for a strike mandate totalling 1,851 yes votes versus only 43 members who voted no. There were two spoiled ballots.

The overwhelming strike vote reflects the determination of steelworkers, salaried employees and retirees throughout the Canadian steel sector to defend their rights under all circumstances even in the face of the retrogressive police powers of the CCAA. Steelworkers and their allies reject with contempt the wrecking of the oligopolies and their co-conspirators within the state machine.

The working class will resist all attacks on the rights of active and retired workers and will hold the provincial and federal governments to account for the established pensions, OPEBs, collective agreements, a level of steel production that meets Canadian demand and all other negotiated arrangements within an equilibrium between the contending social classes.

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Canadians Oppose the Entitlement of Class Privilege

Justice Frank Newbould is presently presiding over the bankruptcy process of Essar Steel Algoma within the Companies' Creditors Arrangement Act (CCAA). The justice in such cases has police powers to decide issues that affect the working and living conditions of Canadian workers and retirees, and the assets and income of businesses and even certain state agencies. In the Algoma case Newbould has already ordered the suspension of regular company payments into workers' pension funds. He also finds no issue with the collapse of the safety committee arrangements steelworkers previously organized with the company and the freezing of all human rights complaints under CCAA. He has in addition given the green light for those who have seized control of the company under CCAA, led by Deutsche Bank, to open the collective agreements with both steelworkers and salaried employees and force them to make $22 million in concessions. When USW Local 2724 publicly said it would canvass its members to vote for a strike mandate in the face of unilateral demands for concessions, Newbould castigated the union for taking such an action and hinted that he may not allow a strike while under CCAA.

Newbould was the presiding justice in the notorious Nortel CCAA bankruptcy case where tens of thousands of workers and salaried employees, retirees and small businesses suffered great losses to their personal and collective well-being.

Complaints Against Justice Newbould

The Indigenous Bar Association accuses Newbould of interfering with the Saugeen First Nation land claim. The Indigenous Bar Association and others filed complaints in 2014 with the Canadian Judicial Council (CJC) after Justice Newbould spoke at public meetings and wrote two letters in opposition to a proposed land claim settlement with the Saugeen First Nation. The land claim to extend the reserve territory had the support of the federal government. The town of Sauble Beach appeared prepared to agree with the claim until the intervention of Justice Newbould who owns a cottage that would be around 400 metres from the new reserve boundary.

In response to the complaints against Newbould plus additional information from the Indigenous Bar Association and others, and the expressed determination of many to engage in organized political pressure to resolve the matter, the CJC announced on February 13, "An inquiry committee will be held under the Judges Act about Justice Frank Newbould of the Ontario Superior Court of Justice over complaints that he made comments and wrote letters on an ongoing land claim issue in Sauble Beach."

Newbould's letters and words to the town council have been characterized as self-serving and stereotypically racist. Newbould ignores the centuries-long misery and injustice suffered by the Ojibwa people and other Indigenous peoples along the shores of Lake Huron, who have seen their traditional territory diminished to the point it cannot sustain an economy for their people. Newbould attacks what little means the Saugeen First Nation has to engage in commerce saying that any extension of activities such as charging user fees, selling goods on the beach, and leasing cottages to vacationers will change the character of Sauble Beach, where his family owns a cottage.

Justice Newbould's Intervention

Newbould's complaints against the Saugeen First Nation expanding their reserve territory are of a similar character to the words and actions of a racist colonial state.[1] Canadians should be outraged that class privilege was used in this manner to trample on the rights and dignity of the Saugeen First Nation and derail a land claim settlement.

Ojibwa and other Indigenous peoples had a thriving local economy in the Lake Huron territory for thousands of years prior to colonial seizure and occupation of their land using superior weaponry and other methods to commit genocide against them. The Indigenous peoples bravely resisted and survived and now in the twenty-first century are demanding recognition of their rights.

The land treaties of the mid-nineteenth century were racist abominations that gave a fig-leaf of legality to the theft of Indigenous territory. The Saugeen First Nation never agreed with the original boundaries of its reserve and has launched repeated land claims. Newbould in his letter even acknowledges those ongoing disputes. In a despicable manner he uses a First Nation petition for the right to pursue traditional fishing in the mouth of the Sauble River as so-called proof that the reserve does not extend to the proposed new boundary. Such cold calculation against a courageous and resilient people who want to develop their local economy and prospects for their youth can only emerge from someone who is steeped in the entitlement of class privilege.

Steelworkers under continuous CCAA abuse in both Hamilton and Sault Ste. Marie have long said that having people who are not their peers, such as Justice Newbould and Justice Wilton-Siegel, making decisions that greatly affect workers' lives is not right or just and should never happen.

Steelworkers feel great empathy with the words of Koren Lightning-Earle, President of the Indigenous Bar Association, who upon learning that Justice Newbould may retire before a hearing can take place expressed disappointment saying, "When Canada talks about this reconciliation, are they actually going to put those things together and actually walk the talk? If he just retires, then the action has ended, there is no reconciliation, there is nothing."

Steelworkers and Indigenous peoples stand together in defence of the rights of all,
Hamilton, Labour Day 2006.


1. Destroying the economy of Indigenous peoples and restricting any redevelopment has long been a repressive colonial policy. The colonial aim is to make life so difficult for the remaining Indigenous peoples that they will leave their territories for the big cities. This allows the financial oligarchy to seize the land and natural resources without opposition from the rightful owners.

On the Canadian Prairies, the colonial forces exterminated the buffalo, a pillar of the Indigenous economy. Within the situation and faced with decimation of their population from European diseases and other attacks, the Indigenous peoples demanded contiguous territories on which they could engage in modern farming and develop a new economy. The government responded with contempt, only allowing small non-contiguous reserve territories generally on the worst land. Still, the Indigenous peoples on the Prairies took up modern farming on what was left of their territories and used their communal traditions to pool their resources to buy equipment and supplies. The colonial state brutally intervened and passed a nineteenth century law criminalizing the sale of any Indigenous agricultural commodities outside their own reserves. The colonial state declared that the communal traditions and practices of the Indigenous farmers gave them an unfair advantage in competition with non-Indigenous settler farmers from Europe who were being encouraged, mostly with free land to come and populate the Prairies. This racist law crippled Prairie Indigenous reserve farming from which the people are still struggling to recover.

It should be noted that the big powers use similar weapons of economic boycotts and embargoes for empire-building especially against smaller countries that refuse to submit to enslavement within the imperialist system of states. The U.S. imperialists have imposed economic embargos against Cuba and the Democratic People's Republic of Korea for over sixty years in a brutal campaign of regime change to bring those countries under their control.

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For Your Information

Justice Newbould in His Own Words

The Canadian Judicial Council (CJC) notified Justice Newbould of seven complaints that followed his letters and speech to a town council regarding his opposition to new boundaries for the Saugeen First Nation. The complaints questioned whether a Superior Court justice who owns property nearby has the right to use his state position and authority to affect the outcome of a land claim.

The CJC announced on February 13 the Review Panel's decision to constitute an Inquiry Committee into Justice Newbould's conduct. Newbould is an Ontario Superior Court justice and team leader of the Commercial Court List located in Toronto, which hears cases under the Companies' Creditors Arrangement Act (CCAA).

The decision to go ahead with the inquiry was made by a Judicial Conduct Review Panel of five members, which, in accordance with Council's 2015 procedures, promised to bring in additional transparency and public participation to the process. The panel was comprised of three members of Council, one puisne judge and one layperson.

Members of the panel reviewed allegations relating to the judge's participation in the debate on the proposed settlement to a boundary dispute that was the subject of a land claim involving the Saugeen First Nation.

After review of the matter, the panel agreed that, if proven, the allegations surrounding the intervention of Newbould in the context of a court case could be so serious that they may warrant the judge's removal from office.

Nuri Frame of Pape Salter Teillet LLP, a firm that represents the Saugeen First Nation, told Legal Feeds his client did not file the complaint against Newbould despite its "deep concern about his conduct" and that his involvement had "impaired its interest and impaired the ability of all parties to arrive at a successful resolution to the issue outside of trial."

"It is my understanding that Justice Newbould participated in a community meeting in the fall of 2014 and that Justice Newbould subsequently wrote one and perhaps more than one letter to the municipal council up there with respect to Saugeen First Nation claim regarding Sauble Beach, which is obviously a litigation going back to the middle of the nineteenth century with respect to the improper delineation of where Saugeen's reserve ends and the failure to recognize the entirety of Saugeen's reserve pursuant to their treaty of 1854," says Frame.

At the time of Newbould's intervention, the town of South Bruce Peninsula, which encompasses Lake Huron's Sauble Beach, was debating whether to accept a land claim settlement that would have extended the territory of the Saugeen First Nation to within about 400 metres of Newbould's cottage.

In two letters and a presentation at a public meeting and possibly other personal pressure, Judge Newbould castigated the town council for not vigorously fighting the Saugeen First Nation land claim and encouraged it to be more combative. He spelled out how the council should proceed to defeat the First Nation's land claim, even though the federal government supported it. Newbould asserted the claim was based on a flawed interpretation of historical land surveys. He offered one of his lawyer colleagues as a second voice in the battle against the Saugeen First Nation.

Saying he was "speaking as a cottage owner," he warned that agreeing to the claim could result in danger for townspeople and would change the character of the beach. In racially charged language Newbould writes in his August 25 letter to town council that an inherent danger exists with joint management of the beach with Indigenous people.

Newbould writes, "There is a serious risk in my view that management agreement/system will not provide sufficient protection to the town residents. I say that because of how it will operate and what could well happen."

This complaint and fear of what the ruling elite call "mob rule" go directly to the issue of the people's control over their lives. This relates not to a fear only of Indigenous peoples having control over their lives but the working people generally. The complaint reveals a fear of losing the class privilege and entitlement of control the ruling elite now enjoy.

Newbould expresses his fear of loss of control in the economic and political spheres, where control has always been central to those with class privilege who either possess great social wealth or social positions of power granted from the state. He raises a racially tinged spectacle of the Indigenous people finding ways to develop their economic base, ways that are offensive to someone who wants to use his cottage as a summer respite without people nearby engaging in economic activity he considers distasteful.

Newbould writes, "It can be expected that the Saugeen Band will want to earn income from the beach. It is not in their interest to fund caretaking for the beach if there is no financial reward coming in. They earn income from all other lake front property they own and from the reserve north of Sauble River either from cottage leases or charging users of the Beach south of Main Street and from tobacco sales. There is no reason why they would see things differently if they are given title to the beach north of Main Street."

Newbould then presents a racial conception of "us" against "them" in managing of the beach within a management board and no possibility of finding agreement to develop the entire region economically and in other ways for mutual benefit.

He writes, "They [referring to Saugeen First Nation] have said that they intend to manage the beach as they do in the south end. That is cars, user fees and likely cigarette sales. There are bound to be very different views of the Band and the cottagers and/or Town representatives on the management board."

Newbould presents a scenario where the relations between the First Nation and cottagers and other townspeople cannot be developed towards mutual benefit and respect. The fear of constant conflict and loss of income and control underscores his words.

He writes, "If there is no agreement by the management board, there will have to be mediation/arbitration, which will be a continuing expense. Settling this litigation on the basis of the proposal described at the Sauble meeting will in all likelihood not end the litigation expenses."

Justice Newbould sees the world from his privileged position as a Superior Court justice where the oligopolies dictate everything and if the working people want their day in court they must pay through the nose. For example, under the police powers of the CCAA, the 2,750 members of USW Locals 2251 and 2724 at Essar Steel Algoma have paid almost one million dollars in lawyer fees just to have an official presence in Justice Newbould's CCAA courtroom. The presence of course does not mean that the steelworkers have any say or power as that rests entirely with those who control the process and Justice Newbould himself.

Newbould describes a stereotypical scenario that a Saugeen First Nation "bursting with cash from the federal government" will overwhelm the town with lawyers' fees and endless litigation and will never be able to develop respectful and mutually beneficial relations with anyone.

He writes, "The Town at the time of any dispute might not have an appetite to spend money this way on continuing mediation/arbitration, particularly if the Saugeen Band will be in a position to outspend the Town with income coming from the Federal government and from their anticipated casino. Unfortunately, under the proposed settlement, the town residents who have cottages or homes at Sauble Beach will not have any direct input into such a decision, and they will be the ones affected. There is no assurance that these people will be listened to by the Town council of the day."

Interesting in this regard that Justice Newbould complains about the lack of democracy and control for the townspeople over affairs that affect them. This complaint is general amongst Canadians on the need for democratic renewal to develop new democratic and social forms and a new system of governance that allow working people a say and control over their working and living conditions. For Indigenous peoples, since the colonial military occupation became a dominant Canadian state, they have been the subject of continuous abuse and have had no control over their lives and territory. They have been blocked at every turn in efforts to build their lives, economies and nations.

Scott Robertson, Vice-President of the Indigenous Bar Association describes Newbould's 2014 intervention as a significant factor in derailing the Saugeen First Nation's "hard-fought negotiations" to resolve its land claim. The matter went back to the courts where it continues today. Robertson told the media that it was improper for a member of the Ontario Superior Court to take such a public stand outside the court on an issue that affected him personally and which he knew could wind up before the Superior Court. His position within the state and words carried great weight in the Town Council and smashed any possibility of coming to an arrangement without continuing costly litigation.

(With files from National Post, Toronto Star, Canadian Press)

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