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Two-day LPAT hearing gets underway Thursday

Get caught up with the appeal against the Kingsway Entertainment District
Ontario's Local Planning Appeals Tribunal (LPAT) will reconvene on the Kingsway Entertainment District matter for the first time in more than nine months on Sept. 17 and 18. (File)

Ontario's Local Planning Appeals Tribunal (LPAT) will reconvene on the Kingsway Entertainment District matter for the first time in more than nine months on Sept. 17 and 18.

The LPAT is an adjudicative tribunal that hears cases in relation to a range of land use matters, heritage conservation and municipal governance. Appeals that come before LPAT are identified through policies found in the Planning Act, Aggregate Act, Heritage Act, Municipal Act, Development Charges Act and Expropriations Act

The LPAT is the new appeals body for planning decisions, taking over for the Ontario Municipal Board in January 2018. Unlike the OMB, LPATs will review a city council's decision to see if it conforms to local and provincial planning rules, rather than start the process from scratch.

Standing in support of the Kingsway Entertainment District are Sudbury Wolves owner Dario Zulich and Gateway Casinos, while local businessman Tom Fortin of Casino Free Sudbury, Laurentian University professor Christopher Duncanson-Hales, activist Steve May and the downtown Sudbury Business Improvement Association remain in opposition.

Fortin is named in all four of the LPAT appeals, as is the Sudbury Business Improvement Area. Duncanson-Hales is joining the appeal of the Official Plan amendment to permit the casino, as well as the appeal of the rezoning required to permit the casino. Finally, another activist, May, has joined the appeal of the rezoning to permit a public arena.

The groups are fighting to stop the casino from being built on the site, as well as city council's decision to move the arena from downtown Sudbury to the Kingsway. 

The Minnow Lake Restoration Group had their Kingsway Entertainment District appeal dismissed in April.

An appeals process that got underway more than two years ago has hit its share of snags, right from the early stages. The first step in addressing the appeals of the KED were put on hold during a case management conference in November of 2018.

The hearing at the provincial building in Greater Sudbury was supposed to determine the issues to be addressed at the full hearing stage, but disagreement over the issues made that impossible. Specifically, Stephen Watt, the lawyer representing the city, argued that six of the issues raised in the appeal were beyond the scope of the LPAT, including the argument the city had to have a referendum before approving the casino.

In July of 2019, the LPAT released a decision rejecting six of the 28 issues that KED opponents had put forward in their legal arguments to stop the project. The issues included whether the city had to hold a referendum before approving a casino, and questions about the process the city used in 2012 to declare it supported a new gaming facility. 

The tribunal also rejected an argument that the LPAT should rule whether the city was biased – fettered, in legal language – when it approved the decision, suggesting Superior Court would be the appropriate venue to hear that issue.

At the case management conference on Aug. 8, 2019, the appeals filed by Duncancon-Hales against the approval of the casino, by Tom Fortin and the BIA against the entire proposal, and by Steve May against the approval of the arena, were all scheduled for a four-day hearing to commence on Tuesday, May 5, 2020, which was then confirmed in the CMC Decision and Order. The Appeal by Minnow Lake Restoration Group was dismissed by the LPAT.

Shortly after the four-day hearing was scheduled, a motion was brought by the Sudbury BIA, Fortin and Duncanson-Hales to adjourn the scheduled hearing to await the hearing and decision in the application to quash the by-laws that was brought before the Superior Court.

Fortin was at the head of the Superior Court application during a two-day hearing on June 29 and 30 of this year. Fortin's arguments were rejected by Justice Gregory Ellies in a 36-page decision that was released last week.

Fortin has led a fundraising campaign to help fund the appeals, which are being handled by Gordon Petch of Municipal Law Chambers. A summary of their appeals document is available here.

The hearing of the LPAT appeals will be conducted as an audio conference hearing on Sept. 17 and 18, starting at 10 a.m. both days. The hearing is expected to take one full day minimum with the second day held as a precaution.

Matt Durnan

About the Author: Matt Durnan

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