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Superior court justice dismisses challenges to KED bylaws

Justice Gregory Ellies found no evidence to support claims brought forward by casino opponent Tom Fortin 

Superior Court Justice Gregory Ellies ruled to dismiss Tom Fortin’s application to quash four bylaws linked to the Kingsway Entertainment District.

In his decision that was released online on Sept. 10, Ellies stated that there was no evidence that the decision of city council was based on anything other than public interest.

Fortin’s application against the city was filed under the Municipal Act, with the intention of quashing four bylaws adopted by the City of Greater Sudbury under the Planning Act.

The four bylaws in question permitted the development of an arena/event centre and a casino outside of the city’s downtown area, at the Kingsway Entertainment District. reported on the two-day Superior Court hearing, following Fortin’s lawyer Gordon Petch’s submissions on day one and the city’s lawyer Tom Halinski’s submissions on day two.

Fortin’s application to have the bylaws quashed was based on three pillars, all of which were rejected by Ellies in his 36-page decision.

The three anchors of Fortin’s submission were that the bylaws were passed following a flawed process, that city council was biased in their decision and that city council acted in bad faith.

“I am satisfied that the decision as to where the arena/event centre would be located was made after a careful study of the potential effects of locating it there, as part of a robust democratic process in which the members of city council were legally entitled to hold a view on behalf of their constituents,” said Ellies in his decision.

“The bylaws were passed following a process that complied with both the letter and the spirit of the Planning Act, a process in which the applicant and other members of the public were given ample opportunity to persuade the Planning Committee and council not to pass them. The fact that their efforts failed does not render the bylaws illegal.”

Fortin’s arguments and Ellies’ responses:

Argument: Bylaws were passed following a flawed process.

Fortin alleged that council and city staff committed a host of improprieties leading up to and following the passage of the KED bylaws. Among the improprieties, Fortin alleges that the city misled the public, limited the public’s ability to make meaningful representations at public meetings and used threats and intimidation to silence opponents of the arena/events centre and casino projects.

Ellies’ response:

“There is no evidence that the applicant ever sought to make representation at the June 27 (2017) meeting. All of the meetings at which the applicant alleges he was denied the right to be heard were governed by procedural bylaw. The bylaw required that notice be given of council’s agenda by posting it on the city’s website. A notice for the June 27 meeting was posted on June 19...The bylaw provided that individuals wishing to make presentations could apply to the city clerk to be designated as a ‘community delegation’ in advance of the meeting, in which case the delegation could make a presentation to council, provided the subject of the presentation was on council’s agenda.”

“The applicant does not allege that the procedural bylaw was in any way breached. The fact is that the applicant never asked to make a presentation to council at the meeting of June 27, 2017. According to the city, no one did.”

Fortin also alleged that he was denied the right to be heard at the April 10 meeting, when council adopted the recommendation of the planning committee and the four bylaws linked to the KED.

Ellies: “The applicant’s submission that he was denied the right to be heard at the April 10 meeting ignores completely the provisions of the Planning Act and the procedural bylaw in effect at the time. The January and March Planning Committee meetings fulfilled the Planning Act requirement that the public be given an opportunity to provide input into the planning applications. The procedural bylaw provided that, where a public hearing has been held by a committee pursuant to a statute, community delegations are not permitted. This is entirely reasonable. “

Argument: Council was biased in their decision to choose the Kingsway site.

Fortin did not allege that there was a conflict of interest in this case; he alleged that there was prejudgment. Fortin submitted that the fact neither he nor his retained professionals were asked any questions at the Planning Committee meetings in January and March is evidence of bias and bad faith.

Ellies’ response:

“The minutes of the Planning Committee meetings shows that each of them were long affairs, with many people making presentations. The fact that the committee asked no questions is just as consistent with the need to leave time for other presenters and the fact that the applicant and his experts were still making representations on issues not before the committee as it is with the applicant’s submission the Planning Committee was not listening.”

“Just as importantly, the applicant has not alleged, nor can I find any evidence, that the committee asked questions of any other presenter, with the exception of city staff, whom I understand were present for that purpose.”

“I have already dealt with and dismissed the applicant’s argument that the Planning Act meetings were a sham; an allegation that he relies on to argue that council suffered from disqualifying bias, as well.”

Additionally, Ellies’ decision highlighted the PriceWaterhouseCoopers (PWC) study that ranked the Kingsway location as the second-highest overall. In terms of the criteria that were deemed by council to be of the highest importance, Ellies pointed out the Kingsway site actually ranked highest overall. Although the Kingsway site ranked highest, the authors of a report to council ultimately recommended the downtown site and wrote of the Kingsway, “while ranking second, the Kingsway site scored high and would constitute a viable location.”

On the night of the vote, June 27, 2017, council was asked to vote on two possible resolutions, the first was to locate the arena/event centre downtown. The resolution failed due to a tied 6-6 vote.

The second resolution was to locate at the Kingsway site, but before the resolution was read, Mayor Brian Bigger proposed that it be amended to require True North Strong Group to build additional facilities at the site on their dime, including a motorsports park, a casino and a conference centre. The proposed amendment was defeated 7-4, and the original resolution was passed 10-2.

Argument: The city and city council acted in bad faith

Fortin alleged that the city acted for an improper purpose in passing the KED bylaws, submitting that “rather than acting in accordance with the ‘intent and purpose’ of the Planning Act and the Municipal Act, 2001, the purpose of the city was simply to obtain the approval of the project, speedily and without interference.”

Ellies’ response:

“The applicant has never pointed to anything that would motivate the city or council to act in bad faith. This stands in stark contrast to the cases on bad faith to which I have been referred by council in the application.”

“As the Court of Appeal said in Equity Waste Management, there must be some evidence that a majority of council acted other than in the public interest. There is no evidence of that in this case. The only evidence I have before me is that there were good reasons to select either the downtown or the Kingsway sites for the arena/event centre. Choosing one over the other could only be improper if the choice was made for reasons other than the public interest. There is no evidence that the decision of council was based on anything other than those interests. Indeed, the evidence suggests that the opposite is true.

With Fortin’s Superior Court application dismissed, the next matter involving the Kingsway Entertainment District to take centre stage is a two-day LPAT hearing scheduled for Sept. 17 and 18.

You can read the complete decision here.