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City acted in bad faith and was not transparent, argues Tom Fortin's lawyer

Gordon Petch states that robust democratic process was not adhered to in Kingsway decision
Tom Fortin. (File photo)

    Day one of the Superior Court hearing of Sudbury businessman Tom Fortin v. the City of Greater Sudbury wrapped up Monday, with Fortin's lawyer, Gordon Petch, stating that the city displayed a pattern of bad faith and was not transparent in its decision to approve the Kingsway Entertainment District.

    Petch stated his case over roughly four hours on Monday, June 29, unpacking transcripts of the June 27, 2017 council meeting when the KED was approved, pointing to instances of intimidation and smear campaigns by members of council against the Sudbury BIA, in-camera meetings and more that added up to the city not adhering to a robust democratic objective.

    Justice Gregory Ellies listened as Petch pored through numerous documents, including the Municipal Act, the Planning Act and the Growth Plan for Northern Ontario, indicating that the city had taken a path of the least resistance by minimizing the risk of appeals against the Kingsway Entertainment District.

    Petch stated that transcripts from the June 27 council meeting indicated that council had made its final decision on the location of the event centre, casino and arena.

    "It was council's final decision on the location of the regional entertainment district on the Kingsway," said Petch. "What I'm attempting to demonstrate to you is had the proponents for the casino and (entertainment) district never have come forward, or secondly and more importantly when they did come forward, had they not been able to demonstrate to council that they would build this thing and the risk could be minimized on the approval side, they never would have put the events centre outside of the downtown."

    Petch stated that in his submission, it was very much quid pro quo where the city was getting the land for nothing and wouldn't put a shovel in the ground or do any design work unless the appropriate zoning was approved.

    "They had to minimize the risk of appeals, they had to fast track everything, they had to get this done," said Petch, who is seeking to have the zoning bylaw quashed by the Superior Court.

    Over the course of his submission, Petch discussed the fact that no study was ever done by the city to look at the negative impacts to the downtown if the arena were to be moved to the Kingsway. Fortin's lawyer also stated that the studies and discussions were all held separately, for the arena, casino and events centre, and were never studied as an entire project.

    Petch argued that council clearly wanted the entire project, but there are no staff reports about how everything works together or how they'll impact the downtown. 

    Another key cog in Petch's submission was that council had already made their decision on the Kingsway Entertainment District without ever going through the proper public consultation process. 

    "I'm not asking you to rule on the merits of a planning decision, or if it's a good idea to have an events centre of's the legality of how they got there," said Petch.

    Petch also suggested that the city kept certain documents, like the options agreement made with Dario Zulich, from the public, displaying a lack of transparency, and that the public should have been aware of all of the information involved with the KED.

    The city stated in their factum that the June 27 meeting was fair and open, while Petch contests that it was not and that in camera discussions that were held during the meeting and the night before.

    Justice Ellies questioned Petch as to what was wrong with councillors getting together before a meeting to discuss matters that would be arising, to which Petch replied there may be statutory issues.

    "You can't just assemble the majority of a board  — this was not a transparent meeting," said Petch

    Leaning on his submission that council had already made their mind up at the June 27 meeting, Petch read through pages of transcript from the meeting before being stopped by Ellies.

    "One of your points is that council had its mind made up, but what you're taking me through shows that there was a heated debate," said Ellies.

    Toward the end of his submission, Petch pointed to instances of a smear campaign by members of council, naming Ward 5 Coun. Robert Kirwan and Ward 11 Coun. Bill Leduc, who allegedly showed up uninvited at Tom Fortin's door, threatening him to withdraw his appeals.

    "This is not democracy," said Petch. "How low is the bar? Councils can go and intimidate everyone so they can't speak up? In totality this all amounts to bad faith and contravenes common law and the bylaw should be quashed."

    You can watch day one of the hearing here.

    Day two of the hearing will commence at 10 a.m. on June 30.

      Matt Durnan

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