The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 10: Shenanigans

In my April 30, 2019 blogpost, "The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 9: Going Through the Motions," I updated readers on the KED cases at the LPAT - and specifically on a number of motions that were filed by some of the parties back before Christmas.  At this time, there is nothing further to update on with regards to those motions, as the LPAT has not yet ruled.  

I think it's fair to say that the Parties had been waiting for the Toronto Rail Deck matter to be resolved first by Divisional Court - but that matter came and went and there has still been no movement (for an excellent synopsis of the Rail Deck case, see this piece by Sudbury dot com reporter Darren MacDonald - "Ontario court backs LPAT process, but what that means for KED opponents is unclear," sudbury dot com, May 21 2019).

By all rights, the Rail Deck decision should have allowed for the KED matters to proceed - but the whole LPAT now appears to be upended by planned changes to the Local Planning Appeals Tribunal Act by the provincial government.  Whether these changes to how the LPAT holds hearings will impact the Sudbury KED matters remains to be seen.  Hopefully, there will be some clarification around this before too long.  But if the Sudbury KED appeals are to be caught up in the changes which will turn the LPAT into something a little more like the OMB, it's probably going to have an impact on the motions that have already been filed (although it's not clear how - which could lead to having to re-file the motions, or maybe not filing some of them at all).

The Word of the Day is Uncertainty

Uncertainty remains the word of the day.  And that's causing a lot of anxiety for some of the parties - particularly those who have big money tied up in this process.  I can't help but feel a little sorry for the developer, Dario Zulich, and Gateway Casinos.  Nobody anticipated these sorts of hold-ups when decisions were made and appeals were filed.  But the City really did roll the dice here with the whole unplanned Kingsway Entertainment District thing. 

Consider: The City's official plan, Downtown Master Plan and Economic Development Plan all contemplated a marquee arena/events centre facility in the City's downtown core.  Those long-term plans were completely upended on the night of June 27, 2017 when Council defeated a motion via a tie vote to put a new arena/event centre in the downtown.  It took just 6 rogue councillors to overturn years of planning informed through public engagement to nix a downtown arena - despite a consultant's report that recommended the downtown as the best available location for this public service facility.

Having killed the downtown option, Council then voted to put an arena on the Kingsway on lands they were told needed to be first rezoned.  Council was warned by their consultants that there would likely be appeals of the land use decisions that would end up in front of the Ontario Municipal Board.  But the Kingsway was nevertheless selected, with many members of Council indicating that a new arena could proceed in partnership at that location with a casino and potentially other entertainment based amenities.

Greater Sudburians found out after the fact the City had already entered into an agreement for landowner Dario Zulich to develop the Kingsway with an arena and a casino and other facilities. It's unbelievable that Council didn't know about this agreement before the arena vote - yet they pretended that the arena and casino were not linked.  Mayor Bigger even tried to introduce a motion that would have held Zulich responsible for providing the many other amenities that he said he would provide (including a casino and a motorsports park) - but despite this motion being little different that the agreement Zulich had already entered into with the City, it was voted down.

Council did direct staff to undertake changing land use permissions as quickly as possible.  But nevertheless, the City waited for complete applications to be submitted by the developer in December, 2017 - losing a precious 5 months in the process.  A lot of heads were scratched with regards to why the land use process took so long to move forward with, given Council's direction for haste - but the City was aware that changes to the Ontario Municipal Board were on the horizon - and that any applications deemed to be complete after a certain date in early December 2017 would follow new rules at the LPAT - rules which were reported to be more in the City's favour than those of the former OMB.

But the LPAT has turned out to be a rabbit hole - because those new rules have not been as clear as many would have liked them to be.  And now that there is finally some certainty around those rules, thanks to the Rail Deck decision, the provincial government is poised to throw the baby out with the bathwater and alter the LPAT so as to create what might prove to be some sort of LPAT-OMB hybrid.  Perhaps this government will do a better job than the last when it comes to drawing up legislation, regulation and rules that anticipate every potential twist and turn that a land use appeal might take before it's resolved.  We'll just have to wait and see.

Shenanigans

But while the parties have been waiting for the LPAT, a number of other things have been going on.

Remember that time when the Ontario Progressive Conservative Party enlisted the help of provincially-registered lobbyists to sell tickets to a $1,250-a-person partisan fundraiser?  Well, if you don't remember, that cash-for-access fundraiser caused quite a stir in that the Conservatives had just changed the provincial rules around this sort of thing, backsliding on progressive changes made by the Liberals under former Premier Kathleen Wynne that would have appropriately separated lobbyists, cabinet minister and partisan political money from one another (see: "Doug Ford defends fundraising dinner amid cash-for-access criticisms," the Globe and Mail, February 22 2019).

Shenanigans for sure - but what does that have to do with Sudbury?

Doug Ford

Ontario PC Leader Doug Ford and Dario Zulich

Apparently, quite a bit - as this photo with Ontario Premier Doug Ford and Kingsway Entertainment District developer Dario Zulich shows.  It looks like Mr. Zulich was in attendance at the cash-for-access event with the Premier and met with him - at least for a photo-op.  In and of itself that may be interesting, but a lot of people met with and had their photo taken with the Premier on that night of February 27, 2019 at the pricey partisan event.

But the photo-op might not be the whole story.  Looks like Councillor Robert Kirwan scooped the rest of the local media with regards to just what, exactly, Zulich and Ford discussed that night.  As reported by Councillor Kirwan on his Valley East Facebook group, Zulich spoke with the Premier specifically about the Local Planning Appeals Tribunal and how it has impacted his development proposal. 

Councillor Robert Kirwan's VEFB post

For those paying attention, and in retrospect, it looks very much like Dario Zulich got everything he asked for from the Premier at this cash-for-access event.  With the government now moving forward to change the LPAT Act, ostensibly to cut red tape and make the development process happen more quickly, one can't help but wonder if Zulich had more luck with the Doug Ford, Leader of the Ontario Progressive Conservative Party than Mayor Brian Bigger did in 2018 when he wrote a secret letter to Premier Doug Ford and asked for his "intervention" with the LPAT (see: "Signoretti 'has lost faith' in Bigger over letter to Doug Ford," the Sudbury Star, October 17 2018). 

But the changes Zulich wanted the Ontario PC Leader/Premier to make were, apparently, not good enough for Councillor Kirwan.  Recently, Councillor Kirwan introduced a motion to Council that would have seen the City send Mayor Bigger to Toronto specifically to ask the Premier to intervene further in the LPAT process (see: "Tempers flare as Ward 5 councillor tries to rope premier into KED battle," Sudbury dot com, May 29 2019).  After significant discussion around the Council table that saw the motion referred to by some on Council as "political interference" and compared to the federal Liberal's LavScam, Council defeated the motion in a troubling vote of 8-5 - troubling because 5 members of Council supported Kirwan's call to lobby the Premier to intervene on the side of the City in a quasi-judicial process.  But at least this time, adherence to the Rule of Law prevailed over political interference.

Game Playing

Coupled with the process uncertainty around the LPAT itself, all of this game playing by the developer and the City has left the appellants more than a little concerned.  Tom Fortin, the primary figure behind Casino-Free Sudbury, and Jeff MacIntyre, the Downtown Sudbury BIA's former Chair and current spokesperson on the LPAT appeals, and John Lindsay of the Minnow Lake Restoration Group in particular have had to deal with a public smear-jobs that originate with Councillor Robert Kirwan via columns published in our local newspapers and posts made to his Valley East Facebook Group.  

The uncertainty around the LPAT process due to Rail Deck and changes announced by the provincial government, and the lack of ruling on the City's motion related to jurisdiction and the Fortin/BIA motions related to fettering and "willing host" (discussed in Part 9 of this series) have led Fortin and the BIA to file a Notice of Application with the Ontario Superior Court.  This filing will safeguard their rights to appeal to the Superior Court some or all of the LPAT's rulings - rights that may be infringed upon by provincial changes (see: "More delays possible for Sudbury's Kingsway Entertainment District," CBC News, May 23 2019 - and see specifically comments from Jeff MacIntyre, in the middle of the piece).  The City has not been served with any filing - and may never be served.

Kirwan's Plan to Kill the BIA

But the Superior Court filing appears to have unhinged Councillor Kirwan - who ran to the media with his new plan for success at the LPAT (and in front of the Courts).  That Plan would see the City of Greater Sudbury kill the Downtown Sudbury BIA - effectively removing one of the appellants (see: "City councillor targets Sudbury downtown business group," the Sudbury Star, May 22 2019).  

Killing an organization with a history of promoting local businesses in the downtown core to ease the way for the development of a casino on private property is bad enough.  In fact, it's pretty egregious.  But it gets worse.  In making his case to destroy the BIA, the Councillor appears to have written a number of things about the BIA in local media and in his Facebook group that are simply not true.  Kirwan accuses the BIA of having filed the appeal to the LPAT for the purpose of delaying the KED projects - and not based on any land use concerns.  He has also referred to the Notice of Application filed with the Superior Court as "legal action against the City" as part of effort to have the Court "quash the four by-laws that were approved by council" even though that's demonstrably not the case (see: "Sudbury column: Why the downtown BIA should be scrapped," Robert Kirwan, the Sault Star, May 24 2019).

Disingenuously, Councillor Kirwan indicates that repealing the by-law that created the Downtown BIA will actually allow the BIA to have a greater deal of freedom with the LPAT - presuming that it is able to reconstitute itself on its own terms.  This is complete and utter nonsense of course, as BIA's are created as per provincial legislation that requires municipal approval (you can't just go out and sign up your business buddies and Presto! You're a BIA).  And second, it ignores the reality that when a Party ceases to be a corporate entity (or a corporeal entity if you're someone like me!), they are no longer a Party to the matter before the Tribunal.  So even a reconstituted BIA could not take the place of the existing BIA at the Tribunal.

Councillor Kirwan vowed to bring this matter forward, quickly.  Prior to last week's public Council meeting, Council did meet behind closed doors to discuss matters related to the KED appeals - and it could very well be that it was at that in-camera meeting the Councillor Kirwan relayed to his fellow members of Council his strategy to win at the LPAT by disappearing one of the primary appellants.  Deputy Mayor Sizer reported back on the closed meeting during the open meeting and indicated that the matter had not been resolved.

The BIA Fires Back

Clearly, the Downtown Sudbury BIA is now facing a life-or-death situation thanks to Councillor Kirwan's mean-spirited attempt to kill the BIA after years of service to the Sudbury community.  But the BIA has refused to roll over and play dead for the Councillor.  After writing demonstrably untrue things about the BIA's motivation for filing the LPAT appeals, the on-going smear campaign being waged by Councillor Kirwan against the BIA and individual volunteers of the Association like Jeff MacIntyre, these recent outbursts about the Notice of Application to Superior Court appear to be the straw that's broken the camel's back - or more correctly, stiffened its spine of resolve.  

Last week, the Downtown Sudbury BIA made public that they had filed a request to the City of Greater Sudbury's Integrity Commissioner to investigate Councillor Kirwan for what the BIA believes are breaches to the City's Code of Conduct for municipal councillors (see: "Kirwan's 'misleading the public' BIA says in lodging formal complaint against councillor who wants them disbanded," Sudbury dot com, May 30 2019).  The BIA believes that the Councillor is trying to intimidate the BIA as part of an effort to get them to back down on the LPAT appeals.  The BIA writes:

"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.”

Of course, Councillor Kirwan doesn't see it that way.  In response to the BIA's letter to the Integrity Commissioner, posted on Valley East, Councillor Kirwan explains that he'll "let the Integrity Commissioner deal with the complaint" (which is big of him, considering it's the IC's job to do just that).  The Councillor then goes on to accuse the BIA of being a "political organization" which is rich given that the BIA has no mandate to get involved in politics.  What the BIA is really doing is participating in a legislatively prescribed land use process. It has the right to do this.  It also has the right to go to the courts to look out for its interests.  Neither of these are "political" processes.  

Councillor Kirwan than compounds his problems with the IC (in my opinion) by claiming that the BIA actually admits that it "threatened" Council.  The BIA did no such thing, of course - unless one views filing an appeal of a municipal land use decision to the LPAT as a "threat".  I certainly don't see it that - given that the process for appeal is prescribed in legislation.  This accusation is simply egregious and confounds logic.

And finally, Councillor Kirwan reiterates that the BIA knowingly filed an appeal that had no land use planning grounds and was instead file only to delay the project.  This is in complete contradiction of reality, of course.  The BIA's appeal was determined to be valid by the LPAT after they applied a lens to it to determine whether the appeal specifically raised land use planning reasons.  The LPAT's validity determination of the BIA's appeal was not challenged by the City.  The City has not made a motion to have the BIA's appeal dismissed on the grounds that it was filed "for the purpose of delay" as Councillor Kirwan contends.  One might think that if the Councillor were right about this, the City's legal team would be all over it.  That, of course, hasn't happened - and that's one of the reasons why the BIA contends that they are being smeared by the Councillor.

Valley East's Downtown Smear Campaign

BIA Letter to the IC - Downtown Hate

But that's not all.  The BIA also accuses Councillor Kirwan of being front and centre of a co-ordinated smear campaign against the downtown - including calls for boycotts of downtown businesses - through Councillor Kirwan's moderation of his Valley East Facebook group.  On the surface, this accusation has significant merit, as posts made to Valley East demonstrate that it's a hotbed for downtown hatred.  But although the Councillor is the group moderator, questions will always linger about whether he, as a municipal Councillor, has any role to play to shut down the hate directed at local businesses in another part of the City.

Of course what might seem strange to readers of this blog who are not citizens of Greater Sudbury is why a municipal Councillor would tolerate this sort of stuff (downtown hate; calls for boycotting local businesses; smears and lies about local business owners) being posted to his Facebook group in the first place.  But here we are.  And let me just say that Councillor Kirwan's Valley East Facebook group is a really unusual place - unlike just about any group that I've ever seen run by an elected official.

And it's with that in mind that the BIA's complaint to the Integrity Commissioner raises the issue of just who might be paying for all of this anti-downtown invective - and whether local business owners in the Valley are funding it, knowingly or (more likely) otherwise.

BIA Letter to IC - Advertorials on Valley East

You see, Councillor Kirwan has figured out a way to monetize Facebook. It's long been a bit of a dirty little secret here in Greater Sudbury, but the reality is that viewing the Valley East Facebook group is like going to a Public Meeting to listen to your member of Council expound about the latest municipal initiatives that he wants you to know about, and to field your questions about municipal issues. But interjected throughout those discussions are exhortations to "shop at Macey's if you're looking for a good deal", while Macey's slips a cheque for services rendered into the Councillor's pocket.

Example of "Education-Based Marketing" post on Valley East

Seriously.  Councillor Kirwan refers to this as an "education based marketing" initiative.  Others would call it "advertising".  A few others would call it using one's position as elected municipal councillor to drive people people to your site to hear about municipal business and deriving a monetary benefit from local businesses that get promoted there.  And a few others might suggest that these advertisers are, in part, contributing to the invective against the downtown - again, perhaps unknowingly.  But the reality is if you're a business that's spending money to promote your business on a site that tolerates hate and calls for boycotts of other businesses - guess what?  You too are implicated by association.  That's why campaigns like Sleeping Giants have been successful in convincing business owners to spend their money elsewhere.

You can hear more about Valley East and Councillor Kirwan's "education-based marketing" initiative in this September 16, 2016 piece from Canadaland, "When Your Councillor Spams You On Facebook".  When this piece was recorded, the City of Greater Sudbury did not have an Integrity Commissioner with whom to lodge complaints about the conduct of Council (nor did it have a Code of Conduct for Council).  That's changed since then, and although I understand that the City's new Integrity Commissioner is also under the impression that the Valley East Facebook group is out of his jurisdiction (it not being an authorized City of Greater Sudbury site), I think the IC is going to have to take a hard look at the shenanigans that are going on there with regards to Valley East's on-going smear campaign against the Downtown Sudbury BIA, Jeff MacIntyre and Tom Fortin - and just who, exactly, is benefiting from Councilor Kirwan's anti-downtown invective.  

From 2016 - Councillor Kirwan explains how he benefits from discussing City business

Councillor Kirwan maintains that the Valley East Facebook group is a media site - and not a site for official Ward 5 business (he is the Councillor for Ward 5 - and he does have another Facebook group ostensibly for Ward 5-related business).  But as this post from 2016 shows, even he has never been quite able to separate things clearly.  On the one hand, he here admonishes a group member and writes that if "anyone has a specific question dealing with Ward 5 they can go to the other site."  But if "it is something related to City Council they come here because they know I can provide them with information."  He clearly understands that these discussions around City business are of political benefit (his "profile in the community") and fiscal benefit ("it benefits my business").  Apparently that's not a problem for him.

(the reference in this 2016 post to Valley East having 7,000 members is also interesting, as the Valley East group now has swollen to over 14,000 members - many of whom use the group to keep abreast with what's going on at City Hall.  In some ways, what Councillor Kirwan is doing with Valley East is quite commendable - a lot of his municipal posts really do keep the public informed about the latest municipal initiatives.  But the anti-downtown smear campaign has been a huge problem.  And the fact that he has monetized the group is a huge concern).

When you're a municipal councillor encouraging people to avoid downtown businesses (by publicly attacking the business organization that represents those businesses, and by not culling anti-downtown posts from your moderated site) while promoting Valley businesses - and accepting money for doing so - you know what? I think that's a problem. I think the Integrity Commissioner might see it that way too - but only time will tell.

In a way, I can't wait to get on with the LPAT hearing so that this on-going saga can be brought to an appropriate conclusion. 

(opinions expressed in this blog are my own and should not be interpreted as being consistent with the views and/or policies of the Green Parties of Ontario and Canada)