The battle between the Downtown Sudbury BIA and Ward 5 Coun. Bob Kirwan is heating up again, with the BIA lodging a formal complaint with Bob Swayze, the city's integrity commissioner.
The move comes after Kirwan called for disbanding the group, which is taking part in legal action to try and stop the Kingsway Entertainment District.
In a May 20 opinion piece, Kirwan said the final straw was news the BIA and casino opponent Tom Fortin filed a notice of application to take the city to Superior Court to try and stop the KED, in light of the uncertainty surrounding the planning appeal to the Local Planning Appeals Tribunal, which has been on hold since November 2018.
If the court action proceeds, Kirwan argued it could mean BIA members as well as the city could be liable for any damage awards should they lose the case.
“They are also at risk of having to pay significant damages from other civil action that may be forthcoming from the private sector partners to the KED,” he wrote. “I cannot sit back and allow those downtown businesses to be subject to that kind of risk exposure.
“This leaves council no choice but to set in motion the process of repealing the bylaw that established the Sudbury BIA and effectively dissolving the organization. The downtown businesses will be free to form their own private association if they wish, but that will have to be done without any city involvement or assistance. They will also have to approach all of the downtown businesses to see if they still want to be members.”
He accused the BIA of filing the notice as a backup plan in case they lose the LPAT fight, to ensure the legal battle continues until the project falls apart.
“If people who disagree with council decisions are going to now start resorting to the Superior Court of Justice to oppose our decisions, then we need to demonstrate that we are prepared to deal with these tactics swiftly and aggressively.”
In the complaint to the integrity commissioner, signed by BIA c-chairs Brian Mcullagh and Kendra McIssac, the group accuses Kirwan of attempting to intimidate “the BIA into forfeiting its right to legally defend its interests.
“He is presenting to the public and to fellow councillors the option of a quid-pro-quo: Either the BIA falls in line with his position and drops its planning appeals and potential legal action or he will urge the council to terminate the BIA.”
The BIA denied the notice to Superior Court was part of a plan to extend the legal battle as long as possible.
“(The notice) is required because LPAT’s rules at this point are untested, and because the province is overhauling the process with Bill 108 and appellants, the city and LPAT do not know what will be in the jurisdiction of LPAT by the time this case is heard,” the complaint to the integrity commissioner said. “None of the issues being appealed have changed, and all of the issues listed in the Notice of Application are also listed in the original LPAT appeal, all of which have already been deemed valid by the current LPAT process.”
The group also said Kirwan's Valley East Facebook page “often generates streams of hateful comments toward Downtown Sudbury, up to and including calls for boycotts of Downtown Sudbury and its members. Coun. Kirwan has made no attempt to moderate or mitigate these hateful posts.
“It is our contention that Coun. Kirwan has knowingly and wilfully been misleading the public regarding the basic facts of this project and the challenges it faces; has knowingly and wilfully defamed the appellants, including Downtown Sudbury and named individuals; and has knowingly and wilfully spread discord across the city in a co-ordinated attempt to deter members of the community from pursuing lawful recourse against a decision of city council; and he has done all of these things in contravention of the City of Greater Sudbury’s Code of Conduct.”
If Swayze, who began his role as commissioner in January, decides to investigate the complaint, he would come to Sudbury to meet with the parties before rendering a decision. If he finds Kirwan has broken the code of conduct, the maximum penalty he can recommend is suspending Kirwan for 90 days – and city council would have to vote whether to enforce any penalty he recommends.
The battle with the Sudbury BIA is part of a recent trend in Ontario in which business improvement area organizations take city councils to court. After appealing to the OMB (which the LPAT replaced) to try and force Peterborough council to build a casino downtown, local politicians reached a deal in which the BIA received $150,000 a year for 20 years in exchange for dropping the legal action.
Then Peterborough passed new rules reducing the size of the BIA, restricting what they can spend money on and making it much harder for the group to take the city to court.
More recently, Windsor Mayor Drew Dilkens said last week that BIAs in that city were breaking the Municipal Act by filing an LPAT appeal to oppose the site councillors picked for a new megahospital.
On Tuesday, Windsor council delayed approving BIA budgets after threatening to reduce them by the amount they are spending on the LPAT appeal.
Here's full text of Bob Kirwan's May 20 column.
Decisive Action Called For By City Council
The City of Greater Sudbury is facing legal action in the Superior Court of Justice that may very well force City Councillors to initiate steps to disband the Downtown Sudbury BIA, ask the Ministry of Housing and Municipal Affairs to intervene in the LPAT appeals regarding the Kingsway Entertainment District, and ask our lawyers to recommend an appropriate counter suit to the charges that have been filed in the court against the City of Greater Sudbury.
On April 8, 2019, the Sudbury Business Improvement Area and Tom Fortin (Applicants) filed a Notice of Application in the Ontario Superior Court of Justice against the City of Greater Sudbury (Respondent).
The Applicants are asking the court to quash the four By-Laws that were approved by City Council to allow the amendments to the Official Plan and amendments to the zoning By-laws to permit the establishment of a municipal arena and a casino as part of the Kingsway Entertainment District (KED).
They are asking the court to declare that the By-laws are illegal, invalid and unenforceable, alleging that City Council did not have the legal authority to create the By-laws. In seeking this declaration, the Applicants state that City Council was guilty of improper fettering of discretion; improper delegation of the exercise of discretion; bias; and bad faith. They are also stating that City Council did not have the jurisdiction to pass the By-laws and that there were procedural irregularities in the passage of the By-laws.
The Applicants are also seeking costs on a substantial indemnity basis and other relief that the court deems just.
The Sudbury BIA was created through a By-law passed by City Council. City Council appoints the Board of Directors, which includes a member of Council. We also approves the annual budget.
The City also authorizes the imposition of a surcharge on the annual commercial taxes of all of the businesses that are part of the Downtown area. The surcharge is about 15% of the annual taxes and is an obligatory charge. Businesses cannot opt out, but because they are all members of the Sudbury BIA, they could be at risk of having to pay any costs and/or other legal penalties that are imposed by the court if the Applicants lose their case.
They are also at risk of having to pay significant damages from other civil action that may be forthcoming from the private sector partners to the KED. I cannot sit back and allow those downtown businesses to be subject to that kind of risk exposure.
Because City Council created the Sudbury BIA, appoints the Board of Directors, approves the annual budget, and collects the dues from member businesses, City Council may also be at risk of having to pay damages that are awarded against the Sudbury BIA. This leaves Council no choice but to set in motion the process of repealing the By-law that established the Sudbury BIA and effectively dissolving the organization. The downtown businesses will be free to form their own private association if they wish, but that will have to be done without any City involvement or assistance. They will also have to approach all of the downtown businesses to see if they still want to be members.
The “death” of the Sudbury BIA will leave Tom Fortin as the sole Applicant in this matter and city lawyers can then determine a legal course of action that will have the application removed from the Superior Court of Justice.
I will be urging City Council to officially request that the Minister of Housing and Municipal Affairs intervene in the LPAT procedure concerning the KED. We need the process to be expedited so that a hearing can be scheduled and the parties can present their arguments in front of the tribunal. We need a decision on these appeals as soon as possible or we risk losing everything we have worked so hard for during these past two years.
It is unfortunate that The Sudbury BIA and Tom Fortin have chosen to go down this path. They have each filed four appeals with LPAT and their appeals are being heard through the normal process. By starting legal action in the Superior Court of Justice against the City of Greater Sudbury, they are seeking another avenue to follow in case they lose their appeals with LPAT. This is nothing more than a legal tactic to provide insurance that they can drag this matter out for many years in order to delay a final resolution. They know that even if we settle LPAT, as long as there is a court proceeding on file, we will never be able to move the projects forward.
The City of Greater Sudbury is being run by City Council. Thirteen of us were elected to sit on City Council and make decisions that are in the best interests of the residents of the City of Greater Sudbury. If people who disagree with Council decisions are going to now start resorting to the Superior Court of Justice to oppose our decisions, then we need to demonstrate that we are prepared to deal with these tactics swiftly and aggressively. It is time for City Council to step up and take charge.
Bob Kirwan. Councillor, Ward 5