The long-delayed case management conference to deal with planning appeals opposed to the Kingsway Entertainment District is set for Thursday, just as the legal battle to stop the project is expanding.
Sudbury businessman Tom Fortin, the main public face for the anti-KED movement, is applying to Ontario Superior Court to have the city council decision approving the project quashed. Fortin's lawyer, Gordon Petch, will ask the Local Planning Appeals Tribunal to delay Thursday's conference until the higher court decides on his motion.
The Superior Court motion argues city council was biased – or fettered in legal terms – when it approved the KED, an argument the LPAT has ruled is beyond their jurisdiction.
Fortin's motion to the court argues the city decided it wanted to build a new arena and casino on the Kingsway before the public meetings on the issue were held, and in the process ignored its downtown master plan. The motion accuses city council of acting in bad faith, making a biased decision based on “procedural irregularities.”
In rejecting the arguments for the LPAT proceeding, members of the tribunal suggested Superior Court was the proper venue to deal with the issue.
In an interview Tuesday, Fortin said he and supporters decided to move ahead with the higher court application after the argument of bias was removed from the LPAT appeal a few weeks ago.
“The meeting on Thursday is likely when we'll be arguing that motion” to delay the LPAT process, he said. “Rather than waste time at the Aug. 8 meeting … we just decided to nip this in the bud and go right to Superior Court. We're fairly confident that the LPAT will allow us to do it because they themselves recommended that the fettering issue go to Superior Court.”
Because he's trying to convince the judge to cancel city council's approval of the KED, Fortin said it makes more sense to get a ruling from the higher court first, rather than going through the LPAT process, only to have the project possibly quashed later.
“If the superior court application is successful, the bylaws (approving the project) become irrelevant,” he said. “So just to avoid duplicate costs and wasted time, we're fairly certain they're going to accept this delay.”
City council approved the KED in a vote in April 2018. It called for a new $100-million public arena to be built on property on the Kingsway, alongside a $60-million casino and hotel. The man who first presented the entertainment district idea, Sudbury Wolves owner Dario Zulich, has transferred ownership of land where he proposed putting the KED to the city for a token sum. The casino would be built by Gateway Casinos, which has promised to employ 400 people at the site should the development proceed.
While KED supporters may say the move to Superior Court is just another delaying tactic, Fortin said he believes the bias argument is one of their strongest, and didn't want to let it fall between the cracks.
“The bias issue was the only one that is really discussing matters of whether the whole process was fair, regarding the casino, the arena and everything,” he said.
While he's heard from lots of supporters and detractors – people tend to be supportive in person, Fortin said, but vicious on social media – he said he believes he's doing the right thing for the entire community.
“I know I'm risking a lot of this community's money, and I don't take that responsibility lightly, or the confidence has been placed in me, both monetary and verbal,” Fortin said. “So I think overall, it's better for the city as a whole if we hear this bias (argument) in Superior Court first.”
