Alleging the City of Greater Sudbury failed to follow procedure in relation to the Kingsway Entertainment District, the Minnow Lake Restoration Group had their day in court on Monday.
During an almost four-hour judicial review time slot, the group, represented by lawyer Eric Gillespie, outlined their case, and the city, represented by Tom Halinski, defended their actions.
No decision was made by a trio of judges headed by Justice Thomas Lederer and no date has been scheduled for the case’s conclusion.
“What we’re talking about here is whether or not what happened procedurally was appropriate and justified or fair or whatever test you want to put to it,” Lederer said during his introductory remarks. Directing his comments at Gillespie, he added, “If the process was good, you lose, if the process was bad, you win, it’s as simple as that. … We’re not dealing with a legality, we’re dealing with fairness.”
The Minnow Lake Restoration Group’s argument is that neither the city’s elected officials nor the public at large had adequate information when council voted to move forward with the KED – a municipal arena project on The Kingsway also expected to include a private hotel and casino.
“It’s very clear even on the city’s record that there were a number of categories of information that were not provided to the council members, and even more categories of that information that were not provided to the public,” Gillespie said, arguing that it’s reasonable to ask whether this information would have affected city council’s decisions in relation to the project, particularly the July 14, 2021, vote of city council to proceed with it.
Numerous reports requested by city council in early 2021, such as those on Community Energy and Emissions Plan impacts, economic impacts, federal and provincial funding opportunities and other matters, were not granted in time for the July 14 vote, it is alleged. Much of this information was asked to be included in the latest PricewaterhouseCoopers report on KED, which was released in June 2021.
At the same time, some of the requested information was provided to city council in time via an email from city Strategic Initiatives, Communications and Citizen Services executive director Ian Wood.
“Council possessed more information than the public. Not 100 per cent of all the answers they asked for, but they possessed more,” Gillespie said. “The big deficiency is in what the public possessed. That was the heart of the problem … in our very respectful submission.”
The email by Wood, he said, might have triggered members of the public to come to council chambers and say, “We’re not getting anywhere here, we’re not getting the kind of information we expect.” The public had an opportunity to speak up about the report during a four-hour special meeting on June 16 dedicated to the KED, Gillespie said, and they chose not to.
Sudbury.com has reached out to the city’s communications department for a copy of Wood’s email but have yet to receive either it or confirmation of whether they would send it.
“The community is obviously very concerned. There’s dozens of people here today, that has been the case at all of these kinds of things, and the only response the city seems to (have to) all of that is that people didn’t come on (June 16, 2021) to complain,” Gillespie said. “How could they? They were in the dark. They hadn’t been given new information.”
The Minnow Lake Restoration Group’s judicial review is the third legal challenge the city has faced in relation to the KED, Halinski noted.
“The city has been successful throughout this process, and that’s because the consistent fact has been the decision-making process has been public, it’s been open, it’s been deliberate and thoroughly informed,” he said.
Although there’s no record of specific, formal reports on some of the topics city council requested and which administration indicated early in 2021 they would be provided, he said the pertinent information was included in other reports and correspondence.
The email from Wood to city council was straightforward, in keeping with regular municipal protocol and mainly pointed to other publicly available reports as already carrying the requested information, Halinski said.
The majority of city council members deemed the PricewaterhouseCoopers report to be adequate during their June 16 meeting, a meeting they capped with a lone resolution stating, “That the discussion on the Event Centre Information matter be considered completed.”
A majority vote of council rejected a motion calling for additional information later that month, voted for the project to proceed on July 14, 2021 and voted on Sept. 28 for ground preparation work to commence in late November, which Gateway Casinos ended up delaying by putting their financial involvement on pause at the last minute, in part due to concerns related to the Minnow Lake Restoration Group’s legal challenge.
“Council clearly turned their minds as to whether they still required further information before proceeding and declared, in fact declared more than once … that they did not,” Halinski said. “They had enough information to satisfy themselves and they moved on.”
With “multiple resolutions” pointing to continued city council support for the project, even after the contentious PricewaterhouseCoopers report, he said there’s no indication that the requested information, which he contends the city’s elected officials and general public already have in various forms, would have altered their direction in relation to the KED.
“The municipal process doesn’t have to be perfect,” Halinski said. “There’s always some opportunity to say, ‘But if only you’d looked at this, but if only this additional piece of information had come forward the decision would have been different.’ That’s not the standard.”
The process has to be “public and has to be fair,” he said, adding that the Minnow Lake Restoration Group has failed to prove that city council’s July 16 2021 vote to proceed with the project any differently in the event the “if only” scenario outlined had taken place.
With the trio of judges, including Lederer, John Krawchenko and Pamela MacEachern reserving their decision, it remains unclear when it will be known. Halinski and Gillespie also failed to reach an agreement on how legal fees would be handled, so that will also have to be settled.
The Minnow Lake Restoration Group’s goal is to overturn the July 14, 2021, motion of city council to proceed with the KED.
Tyler Clarke covers city hall and political affairs for Sudbury.com.
