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Minnow Lake case against the KED ‘entirely without merit’

The Ontario Superior Court of Justice Divisional Court has ruled in favour of the City of Greater Sudbury in response to a judicial review initiated by the Minnow Lake Restoration Group in relation to procedure leading up to a July 2021 vote on the Kingsway Entertainment District
KED 3
A conceptual image of the Kingsway Entertainment District's municipal arena/events centre, as released by Ball Construction on social media last week.

Dismissed as “entirely without merit,” the Minnow Lake Restoration Group’s legal challenge against the City of Greater Sudbury has been thrown out. 

This, according to the final decision drafted by Justice Thomas Lederer and released today in relation to a judicial review into the city’s handling of the Kingsway Entertainment District, which had its day in court in front of three judges on April 11. 

The KED was a proposed municipal arena/events centre to be joined by a private hotel and casino at a property on The Kingsway, which the Minnow Lake Restoration Group opposed and city council ended up voting down earlier this week, effectively killing the project.

Joining Lederer in the judicial review were judges John Krawchenko and Pamela MacEachern, who were unanimous in signing off on the decision issued today.

“The impact was limited to more delay in a long-standing planning process and the cost to the City of Greater Sudbury in having to respond,” according to their decision. “If an argument is to be made that a process was flawed and the subject of bad faith, there should be some evidence that justifies the allegation.”

Since there was no merit to the Minnow Lake Restoration Group’s claim by the judges’ summation, Lederer decided the city would be awarded $37,000, which is the partial indemnity claim they applied for of the approximate $54,000 the city spent in relation to this case. 

In most court cases, the losing party covers the winning side’s partial indemnity claim, but the Minnow Lake Restoration Group applied for this case to be considered Public Interest Litigation. If successful, they would have not had to pay the city’s partial indemnity.

Central to the Minnow Lake group’s case is their claim the city did not follow proper procedure leading up to a July 14, 2021, vote of city council to proceed with the KED, and that not all relevant information was given to the city’s elected officials and the public to inform the decision.

The Minnow Lake group’s intent behind the judicial review was for the July 14 vote to be quashed, which is less relevant now that city council has opted to back away from the project.

“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,” Minnow Lake lawyer Eric Gillespie said during their day in court on April 11. 

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 updated report on the KED, which was released in June 2021.

Despite what information came forward, Lederer’s verdict notes a majority of city council voted that a discussion concerning event centre information “be considered completed” during a special meeting of council on June 16, 2021, even after two councillors complained about certain information not being presented. 

“In the presence of council’s acceptance of the report there is no bad faith,” according to Lederer’s decision. “There is nothing arbitrary or unreasonable in the decision to proceed with the project.

“There is nothing in this that supports, in any way, the allegations of improper conduct relied on by the Minnow Lake Restoration Group Inc. as demonstrating a foundation from which the resolution of July 14, 2021 should be quashed.

“There is no breach of procedural fairness, certainly directed at any procedural rights which this applicant could claim. … There is nothing that suggests the council moved forward in haste, did not consider the issues at hand, arrived at an ‘unreasonable conclusion’ or proceeded in any way that could be found to be ‘in bad faith, as that term is known in law.’”

Despite the Minnow Lake Restoration Group’s claims, “there is no basis” for the court to believe the June 2021 update report on the KED, which fuelled city council’s July 2021 decision to proceed with the project, was “deficient,” according to the decision. 

With the judges’ decision quite clear, Lederer’s decision also clarifies, “There is no right of appeal that accompanies this application for judicial review.”

Despite this, Gillespie told Sudbury.com he does not believe they’re done yet.

On Thursday – the day before the judges’ decision was released – Gillespie filed a new evidence motion based on the decision of city council on Tuesday.

During Tuesday’s meeting, city council members unanimously voted against a motion by city administration to proceed with the KED at a cost of $215 million. Mayor Brian Bigger clarified to Sudbury.com prior to the vote that neither he nor any other elected officials were aware the cost had hit that level until a report by city administration was released to them last week.

City council’s Tuesday vote proves what the Minnow Lake Restoration Group has been saying, Gillespie said – that additional information about the project would alter city council support, and that not all relevant information was being given to city council and the public at large.

“The numbers were already ballooning long before the council meeting earlier this week, there was just a problem with that information being communicated to the councillors and to the public,” he said. 

“A lot of the information wasn’t being provided to councillors. Staff knew a great deal of what came out in the subsequent meetings much earlier. This is why Minnow Lake went to court.”

The city blocked the admission of the new evidence on Thursday, Gillespie said. Although he could have initiated another process to get the evidence admitted, this did not happen in time to preempt today’s final decision.

“They didn’t want the court to know because it proved Minnow Lake was right,” Gillespie said of the city. 

Although the KED was struck down by city council during Tuesday’s meeting, making much of the Minnow Lake Restoration Group’s legal challenge a moot point, Gillespie said future legal success on their part might impact them having to pay the city’s partial indemnity claim of $37,000.

With the judges’ decision released today, Gillespie said the Minnow Lake group is still trying to determine what the best path forward might be. 

For their part, a city spokesperson issued a statement on behalf of the city in which they state they are “very pleased with the outcome.”

“The court has found overwhelmingly in favour of the city. The application has been dismissed, and the court found that the application was entirely without merit.”

In late 2020, the Local Planning and Appeals Tribunal dismissed all appeals in relation to rulings against KED opponents with the city at the time, including a Superior Court decision on a challenge filed by local businessman Tom Fortin. 

The city has spent approximately $770,000 in legal costs in relation to the KED to date.

Tyler Clarke covers city hall and political affairs for Sudbury.com.