Sunday, August 7, 2016

Why I won't be changing my vote on "The Maple Tree".

The discussion on that Maple Tree at the Island Savings Centre just won't die down.  People are still pressuring Commission members to "charge our minds" on this issue.

I'm usually open to public input, but on this issue, the matter is completely settled in my mind.

Here, aggregated in one place, is the rationale for my decision.  To be clear, I'm not trying to speak for any other members of the Commission.  These thoughts are mine, and mine alone.  But the points here are an attempt to coalesce a series of answers to a series of questions and challenges that have been circulating in social media and elsewhere.  You may agree with my conclusions - equally, you are free to disagree with them.  But, to quote Martin Luther, "Here I stand.  I can do no other."

First and foremost, as I've said repeatedly, this is a "liability" question.  Mention that one word - “liability” - to any public official in the context of a piece of public infrastructure and they get very nervous.  Because here’s the problem.  We have a report which says the tree is a liability.  And now, if that thing falls and hurts/maims/kills somebody, our insurance company will look us squarely in the eye and say “you knew, and you chose not to do anything about it.  We’re not covering the damage award.  You’re on your own.” 

And no matter how many other reports are generated, or how credible or well-meaning those report-writers are, that one report is “on the books.”  And it’s all the insurance company needs to refuse coverage of losses  (And trees do fall.  Witness the two blow-downs just this week of healthy-looking trees.. each within a mile of the ISC.  I put up a post on this on my FB page last Wednesday night.)

And here's the thing.  When someone goes after government for negligence/liability in an injury or wrongful death suit, the bar (and the damage awards) are always much, much higher than a standard suit against Joe Homeowner.  The courts tend to look at governments, (understandably), as bodies who “should have known better” because – unlike Joe Homeowner – they have all of the expertise and resources of "government" at their disposal.  There is an expectation that government will keep its citizens “safe”.. a much higher expectation and bar there than the expectation placed on an ordinary citizen who happens to have a tree in their front yard that falls over and hurts somebody.  Yes, that ordinary citizen might be sued, but usually the award wouldn’t be – relatively speaking – anywhere near as big as similar awards in cases of “public” infrastructure.

But let's say - heaven forbid - that we get a big windstorm and the maple falls.  And that this results in a $20-million dollar award in a wrongful death suit.  Insurance won't cover.  And these awards aren't usually amortized over 20 years.  Which means the award has to be paid for through a single tax hike.  The math says that tax increase, in a single year, could be well over $650 on average for each of the 30-thousand properties which are part of the group that pays for the Island Savings Centre.  (Some increases, based on assessment, would be much higher.)  Call me chicken if you want, but I don’t want to be the politician standing in front of a crowd and explaining that tax increase when these people can rightfully poke me in the chest with their finger and say “You idiot!  You knew about this!  You were warned!  And you didn’t do anything!!” 

Of course, the frustrating thing about all of this is that the initial report which identified the liability is subject to a non-disclosure clause.  We didn’t even notice that when we signed it, but I’ve subsequently become aware of the fact that most arborists in the Cowichan Valley will not generally contract with local government without that non-disclosure clause.  We can’t release the report, and we can’t even tell you who wrote it.  The reason?  Look no further than the abuse we’re taking over this.  I’ve had several quiet conversations with local arborists on this, and they’ve told me they have no desire to have picketers outside their homes/offices, complaining that they didn’t make the “right” decision about a particular tree.   Which is why we went to Victoria to get the report from Mr. Dunster.  More on that in a minute.

So whether anyone likes it or not, the liability question is number one here.  I will grant it’s probably not what our opponents want to hear.  In fact, many of them are patently and deliberately tone-deaf to this.  But it's the number one reality here.

But what about the two other arborist's reports; the ones that are public?

First, there's the one from Mr. Gessche

Rather than going to the substance of that report, let me take you through a hypothetical.  Let’s say you are buying a house.  You need a mortgage.  But the bank won’t lend you the money until they’re satisfied the house will stand for the 20-year amortization period; that it’s not gonna collapse into the basement.  So they tell you to get a home inspection.  You have a friend in the home inspection business; you call him up and explain your situation to him.  He does a walk-through and writes a report saying the house is fine.  No charge to you, ‘cause he’s a friend.  Do you really think the bank would accept that report if you tell them the circumstances under which it was written?   Even if your friend was duly certified and did his full due diligence, I trust you can see there would be a credibility problem with that.  And sadly, that’s the problem with Mr Gessche’s report.  Nobody paid for it; he did it voluntarily, and his very public support for keeping the tree - while he's certainly entitled to that opinion - taints the credibility of his report from a purely objective perspective. 

All of which is to say that even if we didn’t have the first report, I’d be very hesitant to present Mr. Gessche's report to our insurance company as evidence that the tree was “safe” in the event it hurt somebody.  Because he has clearly stated his bias in the case. 

And then there's Mr. Dunster's report.  That one is interesting.  Dunster is, (even Gessche has said this), the guy who literally “wrote the book” on risk tree assessment.  His report says the tree is (relatively) safe, but he also qualifies that by suggesting we shore it up by sticking a pole up the middle and “cabling” the bigger branches so they don’t collapse.   Which begs the question; if the tree is so “safe”, why even include that suggestion?  The very fact that it’s in there speaks volumes. 

I suspect that some of this goes back to my earlier point about arborists not wanting to be publicly identified with their work.  Mr. Dunster found a very legitimate way to get around that difficulty and speak to both sides of the issue.  Tree supporters can say, with a considerable degree of assurance and credibility.. “Mr. Dunster says there’s no (major) problem!”  

But if the tree fails, Mr. Dunster can equally say to us.. “I told you there was a potential problem.. you should have put in the supports.”   (And remember, in a hypothetical lawsuit, the insurance company is listening to all of this – they don’t really wanna pay out, and Mr. Dunster’s second statement will speak volumes, especially when combined with the first report we received.)  

And as I said at the public meeting last week, giving that tree a wooden enema with cables just isn’t an option.  Not for $10K, and especially not when doing so will only prolong the agony and put us back in this same place in 5 to 10 years.  Sometimes, you gotta bite the bullet.

The other issue here is the "communication" piece.  I absolutely agree that the Commission could have done a better job on that front.  Particularly in articulating the fact that - Joni Mitchell's little ditty notwithstanding - there is no linkage between the parking lot and the tree.  In other words, even if we weren’t doing the parking lot work, the tree would still be coming out. 

We asked for the initial arborist's report late last year.  That report determined that the tree was a safety hazard/liability.  Once that determination was made, the tree’s fate was sealed, even if we had done nothing to the parking lot.  (See my explanation above about what “liability” means in this context.)  

And it was only after we received the (first) arborist’s report that the discussion started about reconfiguring the parking lot.  We had been putting off that work for several years - actually trying to squirrel away some money for it. But now that the tree was gonna go anyway, it gave us some better, safer options for access/egress onto James Street. 

I tried to suggest to the Commission that we “get ahead” of this back in March, when we made the parking lot design decisions.  I warned that “the tree” would be a problem, and that we should go public with the information then to allow time for public discussion. But the communication plan was considered incomplete without a final dollar figure for the parking lot work, and others around the table thought it best to roll out the communication piece all at once.  Which was fair enough. We didn’t have the final dollar numbers on the parking lot contract at that time – all we’d done was approve the design, the project still had to go out to tender.  Bottom line is that my idea wasn't adopted.  Those things happen. 

So there you have it.  Feel free to criticize all you want, (although I'd ask that you refrain from personal attacks - as Commission Chair Sharon Jackson has pointed out, one person has been unable to resist doing so), but this is, from my perspective, where we stand.

Protestors continue to block the necessary work.  Which means a very protracted and potentially expensive legal battle lies ahead.  This will likely take a few months, but at the end of it all, I'm sure common sense and the facts will prevail. 


  1. Either that or let the tree stand or fall as it will, but make the protesters sign an affidavit stating they (and they only) will be fully financially responsible if it comes down and results in a lawsuit. Willing to bet you'd get 0 signatures on that.

  2. Thank you Al for your explanation. How can either the tree supporters or the ones who say take the tree down make any judgements until everything is out on the table? Its simply unfair to continually roast the supporters.( see above comment) Nobody deserves to be made into a bad tax wasting person because they disagree not understand these government complications. Its a total drag the 1st report can t be seen by the public though. Of coarse that is going to appear fishy to anyone that cares about the tree? I hear you are saying its a liability issue at this point though. So that is that. In the future Im sure the council will have to only sign contracts that include transparency regarding the public, the people you serve. ...also, next time just say what needs to be explained , just stick to the facts Im thinking. Way more peaceful and simple.

  3. It's a shame the 1st private tree report isn t available for the public to see. This may be a non issue then.

  4. Very well stated Al.

    I wrote to the CVRD project manager about one aspect of this which was using arborists (certified of course) as if they somehow are the authority for assessment of tree risk. I don't think anyone really knew the level of reaction this tree would garner. However, there are other folks who are amazingly qualified to provide risk assessment in my view. I suspect its a broad community thing UBCM folks all use certified "arborists" vs RPFs, "tree scientists" the later are likely more expensive.

    My view on liability is that it does not matter what a muni does regarded trying to safe guard risk liability for a tree or anything else these days, lawyers are most successful fighting for the little guy, almost always. For instance redesigning the parking lot to one access point being deemed safer, then someone accidentally runs over someone in the new entrance, they live to sue the muni/regional district (among others) for a poor designed, signage, paint marking and a myriad of any other stuff (they would find something), them might just win an seems that our Canadian society has migrated toward the American in that folks sue over anything these days.