The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 9: Going Through the Motions

"We've been sitting on the fence for far too long." - Caiaphas, "Then We Are Decided," Jesus Christ Superstar

The Easter season has come and gone, and despite numerous promises - mostly to myself - I still haven't completed this 'going through the motions' blogpost that I started months ago.  I had started to think about putting completion off, er, completely until the LPAT ruled on the motions - but that hasn't happened either. Unlike Caiaphas and Ananias' experience in my Easter-favorite film, nothing has been decided.  And I'm still sitting on the fence.

Maybe that will change.  Maybe I've found my mojo tonight to finish this damn post.  I said back in March, in Part 8 of this series ("The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 8: Derailed!"), that I'd get my act together - so here's hoping I have.  But like so many in the community, I've really grown tired of all of this.  But I can't give up - I'm 9 parts into this series now, likely with another 9 to go before it's all over.  There are more twists and turns with this LPAT appeal than you could find in a pretzel factory.

Recap

To recap: the Case Management Conference for this matter was held in Greater Sudbury on November 6, 2018, in front of a 3-member Local Planning Appeal Tribunal (LPAT).  The Tribunal "stopped the clock" for this matter after the CMC, due in part to the Toronto Rail Deck divisional court reference, which all parties acknowledged would have an impact on our hearing.  The Rail Deck matter was finally heard by the courts just last week (April 24), but a decision has been reserved.  When that decision issues, and if there are no appeals to it, it's very likely that the LPAT will move forward to schedule a second Case Management Conference at which it will provide the parties with a level of certainty around processes related to cross examining witnesses and entering new evidence.

But our own little hearing generated a number of questions related to processes, too - and the parties who raised these issues believe that the LPAT itself has the ability to decide on the issues via motion submissions.  At this time, no party has indicated that it will pursue process matters at divisional court - but it remains possible that a Party might yet do so, or the LPAT itself may refer matters to divisional court, similar to what it did with Rail Deck.

Let's go through the motions now, to see what, exactly, the parties want the LPAT to rule on.  I'll offer my own thoughts along the way, for what they're worth (and honestly, they're likely not worth very much - without knowing whether the divisional court in Rail Deck is going to rule on whether the LPAT should be more like a decision review board or more like the OMB, it's hard to anticipate where a lot of this stuff is going to land).

LPAT Orders Certain Motions to be Filed

Motions were filed by legal counsel for Tom Fortin, Christopher Duncanson-Hales, and the Downtown Sudbury Business Improvement Area (whom I'll refer to from now on as the "primary appellants" - all of whom share legal counsel in Gordon Petch); the City of Greater Sudbury (represented by legal counsel Stephen Watt); and "the added parties" - 1916596 Ontario Limited - who is the applicant, aka the landowners, which include Sudbury developer and Sudbury Wolves hockey team owner Dario Zulich (represented by legal counsel Daniel Artenosi) and Gateway Casinos (legal counsel Andrew Jeanrie) filed a joint motion. The two unrepresented parties - myself and John Lindsay of the Minnow Lake Restoration Group - did not file any motions.  Because we are so clearly in way over our heads here.

Here are the Motions the LPAT ordered the parties to make, after hearing their submission at the CMC:

Motions Ordered by the LPAT

Let's look at the motion made by the added parties first, as it's probably the most straightforward - and there may be a little something to write about with regards to an anticipated outcome, thanks in part to a recent LPAT decision on a matter in the City of Kawartha Lakes.

The Added Parties

As indicated earlier somewhere in this blogseries, the landowner/applicant to a planning matter is no longer considered automatically as a Party to the proceeding at the LPAT.  Only a municipality/approval authority and the appellants are automatically given Party status.  An applicant - who is usually a property owner who filed an application with a municipality, paid a fee, likely paid for most of the technical studies to support the land use change request, and who clearly has a fiscal interest in the outcome of any proceeding at the LPAT - well, they've got to now approach the LPAT on bended knee and request Party status.  

Based on my read of a number of LPAT decisions, it's become quite clear that these sorts of requests for Party status have already become routine no-brainers for the Tribunal: the land owner has an interest in the outcome and needs to be front and centre at a hearing - especially if a mediated solution is going to be sought.  But not just then. Although the LPAT can't vary a municipal decision after the outcome of the first round of hearing an appeal to an Official Plan amendment or a zoning amendment, it can make recommendations to a municipal Council when it boots it back to them for reconsideration.  Those recommendations ought to be informed ones - and the landowner needs to be present in all of these situations.

In our hearing, all parties consented to the addition of the applicant/landowner, and to the addition of Gateway Casinos - who has a fiscal interest in the outcome - to be added as parties.  The LPAT added both parties to the matter at the November, 2018 CMC.  But these new parties, having only just been added by the LPAT, did not have a chance to respond to the Case Synopses filed by the appellants in the same way that the City of Greater Sudbury did.  In effect, the legislation and the Rules of the LPAT allow the two new parties to participate - but don't permit them an opportunity to file any materials.

Now, that might seem just fine if the LPAT is going to act truly as a body that reviews municipal land use decisions.  Think about it.  The idea here is that all of the evidence germane to the appeal would already have been filed at this point - with the municipality that made a decision. If the applicant had a planner (and he did) that planner would have filed a planning report with the City (which he did) and the City would have forwarded that material along to the Tribunal and appellants via the enhanced municipal record (which the City did).  So the basis for the applicant's case should already be on file, and available for their reference, right?

Motion - Added Parties - Purpose of Motion

Well, the added parties don't see it that way.  Via motion, Zulich and Gateway are asking the LPAT to grant them leave to individually file their own case synopses and appeal records, which could include affidavit evidence.  The LPAT's Rules seem to suggest that "appeal records and case synopses" are intended to only be filed by appellants (see Rule 26.11).  The added parties acknowledge in their motion that there is no specific Rule of that specifically provides an added party with an opportunity to introduce an appeal record/case synopses, but the LPAT has the ability to do so based on their interpretation of Rule 26.20 - which allows the LPAT to add parties " on such terms as the Tribunal may determine."  Further, the added parties submit that doing so is necessary as a matter of natural justice.

In response, counsel for the primary appellants asserts that since the added parties did not express to the Tribunal that they would be seeking additional rights once added, that the primary appellants would not have assented to the inclusion of the added parties as parties without debate/discussion of these rights.  As a result, the primary parties assert that the added parties motion should fail.

The added parties assert that the Tribunal, as per a rather flexible read of its Rules, has the ability to require the production of a case synopsis/appeal record.  I have to admit, at the CMC, I raised this matter with the Tribunal, because as an appellant, it looked to me that if the added parties were allowed to do this, I would need to file further responses.  Clearly, I don't think it is necessary for the added parties to file these materials - but I'm not privy to how they want to make their case. Anyway, at the CMC, counsel for one of the added parties shut me down - said the authority is there, in the Rules - and I think he's right.  It's not spelled out explicitly, but the Tribunal clearly has a wide range of latitude regarding what it can do when authorizing a new Party.

The question is, should it?  The added parties here rely primarily on natural justice - and that may be enough. The primary appellants response that the added parties are seeking a new "right" just doesn't seem to hold up - the "right" is there in Rule 26.20.  And I feel a lot more comfortable writing all of this - which is in complete contradiction to the legal counsel of the primary appellants - after having read the LPAT's April 18, 2019 decision regarding Case PL180734 in the City of Kawartha Lakes.

Kawartha Lakes and Added Parties

From LPAT Decision - re: Added Party / Case Synopsis

In the Kawartha Lakes matter, the City didn't bother showing up at the hearing.  But the applicant did, after having appropriately petitioned the Tribunal to be added as a Party.  Once added, they requested the Tribunal to allow them to file a case synopsis and affidavit material on the grounds that since no one else was going to do that, they had no choice but to.  The LPAT agreed - and ordered that, in this scenario, it would be appropriate for the applicant to essentially act as a substitute for the no-show municipality.  That's an interesting case on its own, but the take-away for the Sudbury matter is that the LPAT authorized all of this as per its interpretation of the LPAT Act and the Rules.  So clearly the LPAT believes it has the authority to be able to Order an added party to file a case synopses and corresponding affidavit evidence.

From LPAT Decision - Authority to determine appropriate actions for added parties

The only question now is whether it's appropriate to do so in the Sudbury matters.  And there might be something in the LPAT's Kawartha Lakes decision about this, too. 

From LPAT Decision - Tests for a 'balanced and leveled presentation of the argument' by both sides

In [58], the LPAT identifies that the resolution of the hearing must be "fair, just and expeditious" based on a "leveled presentation of the argument and submissions of both sides in the appeal."  To achieve this outcome, the LPAT appears now to have established two tests.

The first test, found in [59] is the requirement for a thorough response to the appellant's case synopsis. In Kawartha Lakes, the LPAT didn't have that, because the City didn't want to get involved and did not respond to the appellant's case synopsis. That's not what happened in Greater Sudbury, though - the City did respond to the appellants.  So strike one for Zulich and Gateway here.

The second test, found in [60], suggests that the Tribunal has to have all relevant evidence and pertinent materials in front of it to support the response.  It's not clear whether that happened in Kawartha Lakes (because the City didn't show up to confirm its due diligence in filing materials, and the LPAT could not question it), but it is pretty clear that in the case of Greater Sudbury, everything that's needed to support a thorough response to the appellant's case synopses has been filed - because the City has already relied on it for its response.  Strike two for Zulich and Gateway.

And since there are only "two sides" here - it's incredibly unclear whether Zulich and Gateway have anything meaningful to add to the "argument and submissions" that hasn't already been made.

But what about natural justice?  That's something that the LPAT is going to have to wrestle with - and frankly it's part of the bigger picture about what, exactly, the LPAT wants to be / should be.  Are we talking about keeping the LPAT as a very limited review body - available only to decide on narrow grounds whether a municipal decision on zoning or official plan amendments appropriately considered provincial and municipal policy?  Or is the LPAT really intended to be something bigger, more akin to the OMB - but without the 'hearing do novo' starting point?  The added parties seem to want it to be the latter, but it seems to me that the LPAT believes it really ought to be the former.

And that seems to be illustrated in what I think is Strike Three for the added parties here.  It seems that the LPAT, out of an abundance of caution that this Kawartha Lakes ruling might be used by added parties to further expand the level of their participation, in the same decision at [62], the Tribunal makes it darn clear that this isn't going to happen in all circumstances - particularly where the LPAT feels that it has enough to move forward.

LPAT Decision - Clarification

And that's why I think the added parties are going to be out of luck on this motion.  The LPAT already has the City's response to the appellants' case synopses.  It does not need anything further from the added parties to come to a "fair, just and expeditious" resolution.

New Evidence

Just one last thing about this.  Note that at the CMC, the LPAT ordered the added parties to individually or together file a motion to allow them to file a case synopsis.  But the added parties actually filed a motion for three things: 1) file a case synopsis; 2) file appeal records; and, 3) affidavit evidence.  Note that the last two matters appear to be out-of-scope with the LPAT ordered - and counsel for the primary appellants certainly brought that to the attention of the LPAT.

While I might not know for sure what "appeal records" are, I can't help but think that they would be documentation pertaining to the case synopses.  As an appellant, I can't help but wonder whether the intention here is to file new evidence - something that I thought the legislation (LPAT Act) and Rules prohibited.  As an appellant, it has not been my expectation that I would ever need to "respond" to someone else's case - the only 'response' that the legislation and rules appear to permit is the City's response to my case (and the cases of the other appellants).

The added parties maintain these materials are needed in order to make their case.  All the more reason - if the LPAT really is to be a municipal decision review panel - to reject the motion of the added parties. And all the more reason the motion will be rejected.

Motion of the City - Jurisdiction

So ya, that was the easy one.  Let's now turn to the motion filed by the City of Greater Sudbury with regards to the case synopsis of the primary appellants.  The City, via motion ordered by the Tribunal, submits that the Tribunal should Order the deletion of certain issues raised by the primary appellant.

CGS - Motion Purpose

Let's take a look at these issues - which are taken from the primary appellant's case synopsis - along with the reasons why the City believes the LPAT lacks the jurisdiction to hear/rule on these issues, and why the primary appellants believe the opposite.

The basis for the City's position on all of these issues is informed by the legislation, and specifically the requirements for appeals under 17(24) and 34(19) of the Planning Act to only be made on the basis of inconsistency with the provincial policy statement; failure to conform with or does conflict with a provincial plan; and, failure of conformity with an official plan.  The City asserts that issues 1, 2, 3, 4, 18 and 19 do not meet these statutory requirements and therefore should not be heard.

Issues 1, 2, 3, 4 and 19 - Willing Host

The primary appellants assert that the City of Greater Sudbury has never undertaken its due diligence to meet the regulatory requirements of O.Reg. 81/12 of the Ontario Lottery and Gaming Act.  This assertion forms a significant element of the primary appellant's arguments related to the matters before the LPAT regarding the casino (for more on that case, see: "The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 4: The Strong Case Against a Casino").  Taken together, this is where the primary appellants assert that the City has never undertaken an appropriate evaluation with public participation around whether the City is a 'willing host' for a full casino gaming facility.  And Issue 19 requests production of documents from the City regarding how it arrived at the conclusion the City would be a 'willing host' in absence of a O.Reg. 81/12 process.

The City believes that this really has nothing to do with the matter in front of the LPAT - and that if the primary appellants want to pursue this, the right venue would be something other than the LPAT, given its limited jurisdiction.

After reviewing O.Reg. 81/12, and having earlier participated in the only opportunity for public feedback related to a casino in the City of Greater Sudbury (an information session held at City Hall in the early fall of 2012 - one where the public was asked to comment on four sites - none of which included the present proposed site for a casino; and the public was never asked whether it wanted to host a casino), it's clear to me that the City did not follow the process for determining 'willing host' as outlined in the Regulation.  Despite this, however, it's also clear that the OLG doesn't agree with my interpretation (or that of the primary appellants) of the Regulation in this instance, as the OLG has already greenlighted a full casino gaming facility in Greater Sudbury.  The OLG based its decision on a submission made by the City - a submission that the City now cannot or will not reproduce for this hearing.  

But none of that may matter.  If the LPAT determines it has no jurisdiction to delve into whether the City and OLG adhered to the regulatory requirements for 'willing host', these issues will be dead in the water.

But here's why this is important.  It's the way in which the City has moved that the LPAT lacks jurisdiction.  If the City's interpretation is favoured by the LPAT, then the LPAT will be binding its hands for all time with regard to what, exactly, it can base its own decisions on.  The City argues that the LPAT is constrained by the limited scope of the Planning Act - at least as it applies to appeals related to official plan and zoning amendments.

Primary Appellants response to CGS Motion re: Jurisdiction

The primary appellants can't buy that - and are relying on the LPAT Act for a broader interpretation of the scope of the LPAT's authority.  Section 11(2) of the LPAT Act indicates that "The Tribunal has authority to hear and determine all questions of law or of fact with respect to all matters within its jurisdiction, unless limited by this Act or any other general or special Act." That's a little different from the old OMB Act, quoted by the primary appellants above. The City argues that questions of law and fact are, in this case, limited by the 17(24.0.1) and 34(19.0.1) of the Planning Act.  

And ultimately, I think the LPAT is going to agree with the City for precisely that reason - the new provisions of the legislation, which seek to make the LPAT a decision-review panel for these types of matters, don't authorize the LPAT to delve into the question of whether a land use is actual legal within the municipality.  While I know the City failed to live up to legislative requirements on 'willing host' - it appears to me that the LPAT can't go there.  And based on decisions like Kawartha Lakes, where the LPAT appears to be going out of its way to limit its jurisdiction, I expect the LPAT to exclude the primary appellants 'willing host' arguments.

With one caveat: if the Divisional Court rules in the Toronto Rail Deck matter so as to expand the powers of the LPAT instead of limiting them (rules against the City of Toronto and supporting municipalities), all bets are off.  Of course, it is quite possible that the LPAT will rule on this motion before Rail Deck is resolved.  But I suspect these matters related to jurisdiction are at least part of the reason the LPAT has been silent on the motions so far.

Issue 18 - Bias and Fettering

And it's this issue raised by the primary appellants, moreso than the 'willing host' matter that may have LPAT scratching its head.  Issue 18 pertains to the assertion of the primary appellants that the decision made by the City of Greater Sudbury in April, 2018, and subsequently appealed by the primary appellants, was made on the basis of bias and in fact Council of the City of Greater Sudbury made the decision with its discretion fettered - which besides providing an unusual and perhaps unnecessary mental image, is contrary to law.  The primary appellants assert that since this happened, the decision itself must be rendered a nullity, which I imagine is lawyer speak for "tossed into the trash".

Again, the City says that the LPAT lacks jurisdiction.

But here things are less clear.  Unlike the 'willing host' matter, which was somewhat exploratory on the part of the primary appellants, the matter of fettering isn't - it's absolutely a question of law.  And here the primary appellants argue that the LPAT, via Section 11(2) of the LPAT Act, has the ability to determine questions of law through something called 'shared jurisdiction'.  Petch points out that the old OMB used to do so routinely - and as examples notes how the OMB determined compliance with other legislation and instruments, such as the Environmental Assessment Act, Conservation Authorities Act, Municipal Act, Aggregate Resources Act, etc.  Not only did the OMB rule on these matters, but it went through every effort to ensure that its own decisions complied with them - as required by law.

The LPAT is no different, argue the primary appellants.  And limiting its jurisdiction to PPS consistency, and provincial and official plan conformity would be a complete failure and not in keeping with the need for the LPAT's decisions to comply with other legislation.  Although I don't think the primary appellants say it this way, think of this example: what if a municipality makes a land use decision that isn't in keeping with, say, the Municipal Act, perhaps because the amendment being sought includes policy that directs the applicant to undertake an action not in keeping with that legislation.  And what if the LPAT rules the same way, even after applying the consistency/conformity tests?  If that's all the LPAT can rule on - as says the City of Greater Sudbury - than the LPAT would find itself in a situation of endorsing a municipal decision that would be against the law.

Sorry, but that's just inconceivable.  And the LPAT has to rule the same way here - matters of law, because of shared jurisdiction, are in keeping with its mandate.  The primary appellants actually point to the Rail Deck decision of LPAT that led to the stated case to Divisional Court as guidance here, indicating that the LPAT has already ruled on whether it can take on matters of law as part of its jurisdiction (and answered that question in the affirmative in the Rail Deck decision - albeit while referring the 'difficult' decisions in that matter to the Courts).

The problem with ruling in favour of the primary appellants on this motion is that the LPAT is now becoming something other than a simple municipal decision review panel.  I fear, however, that there isn't any other choice - that horse is already out of the barn, thanks to Rail Deck  

The LPAT can't tie its own hands here.  The primary appellants make a persuasive case that this particular matter of law needs to be heard by the Tribunal, as it directly impacts the City's decision to approve the land use amendments in 2018.  They've provided some serious case law around bias and fettering to support this assertion.  

I'm flagging this one as having the potential to end up in front of the Courts - either by LPAT stating a case itself as it did in Rail Deck, or via the primary appellants.  Their case here for bias and fettering is incredibly strong (remember all of those pre-public consultation comments from municipal councillors like Robert Kirwan - along with an agreement made between the City and the developer to acquire land at below-market value? Or the money the City spent on the Integrated Site Plan - before applications were ever filed? The appellants are sitting on a treasure trove of evidence that Council's decision was fettered - that they had a vested interest in making the land use decision they made. I think that anyone in the City of Greater Sudbury who has been following this matter would agree to that - and many would say, 'So what? The City wanted the KED and that's what it went out and got".  But that's not how the land use planning process is supposed to work.

The Motions of the Primary Appellants

The primary appellants have made motions on two matters: 1) the production of certain documents, some of which are related to the 'Willing Host' matter described above; and, 2) that the LPAT give the primary appellants an opportunity to Reply to the City's Response to the appellants' case synopsis, in accordance with the laws of natural justice.  Let's look at this one first.

Reply

The appellants provided their case synopsis, and the City responded to it.  Now, the next step is to go to a hearing on that basis.  The primary appellants contend that, under the OMB and in every other judicial and quasi-judicial venue, they would be afforded the opportunity to submit a reply to the City's response.  The appellant's case here is hampered by the fact that the LPAT Act and the Rules don't specifically authorize or contemplate a Reply.  But the primary appellants argue that the the LPAT has flexibility around this, in keeping with its Rules - and it should exercise that flexibility, in keeping with the laws of natural justice.

Although I, as an unrepresented Party, could care the less about the outcome of this matter, fact is it's a big deal.  If the LPAT opens the door to Reply in this case, surely it will have little choice but to do the same for all matters before it.  But since its own Rules are silent, and if it truly wants to remain a decision-review panel, than it may come to the conclusion that despite natural justice, there's no need for reply.  And that could be a problem for the whole legal community.

No doubt the LPAT is examining this one very carefully.  I'm going to flag this as having the potential for winding up in front of Divisional Court too, out of an abundance of caution.  I expect to see a stated case to Divisional Court from the LPAT on this. The stakes are just too high to get this one wrong.

Regarding production, the primary appellants have asked the City to produce certain documents related to 'Willing Host'.  If the LPAt finds in favour of the City on 'Willing Host' you can bet those documents will not be ordered produced.  And the opposite is true if the LPAT favours the appellants on 'Willing Host'.

Production

The primary appellants have also requested that the City produce the Downtown Master Plan and "From the Ground Up 2015-25 - the City's Economic Development Plan.  The appellants relied heavily on these strategic documents as part of the basis for their appeals (all of the appellants - me included). The City contends that these documents are completely irrelevant to matters before the LPAT, as they had not been incorporated into the official plan at the time municipal decisions were made).   Apparently, a request had been made by counsel for the primary appellants for the City to provide economic development strategies with similar names, some of which are referenced in the 2006 Official Plan (but have been superceded by newer documents - example: the former economic development strategy was replaced in 2016).  The City has not provided these older documents.

First, let me say this, as part of my appeal is based on the notion that the Downtown Master Plan and Economic Development Plan are related to the matters in front of the LPAT: the City's claim of irrelevance is specious at best, and the LPAT will have to decide at a hearing whether the City is right about this.  I remain convinced the LPAT will decide against the City on this matter, due to a provision in the Growth Plan for Northern Ontario which requires approval authorities to consider these types of plans/strategies when making decisions.

But whether or not that's the case, I just can't understand the City's intransigence here of not providing these documents to the primary appellants. The City can't have it both ways. It can't say that it's new economic development strategy doesn't apply because there is no reference to it in the Official Plan - and at the same time insist that its old economic development strategy, which is referenced in the Official Plan, also does not apply because it's been superseded by the new strategy.

LPAT rules in favour of the primary appellants on this part of the production request.

One Last Motion to Go Through

And finally - the motion that no one has talked about, including the LPAT: legal counsel for Zulich filed a motion to the LPAT to have the appeal of the Minnow Lake Restoration Group filed by John Lindsay disposed of without holding a hearing on the grounds that it discloses no planning reasons.

The LPAT has ruled that this motion was submitted out of order.  It was not one of the motions that the LAPT itself ordered - and therefore Zulich is going to have to wait.   

But John is ready - and in my opinion, the motion against John is complete crap.  I get that I'm not the high-priced lawyer who wrote and filed the motion (and really, what do I know?), but I have absolute confidence that the LPAT will not rule against John because a) he did disclose a number of land use planning questions in his appeal, and those questions were not based on apprehension as the lawyer for Zulich contends, but were rather based on provincial policy and the technical studies submitted by Zulich in support of the applications.

In my opinion (and it is just my opinion - I have no idea how John feels about this), there's a bigger game afoot here.

At the CMC, Artenosi, Zulich's lawyer, made it clear that he would be, at some point, asking the Tribunal to remove one Alexander Bowman from Expert Witnesses list.  Bowman is Minnow Lake's technical expert - and the LPAT has specifically requested that he appear as a witness to speak to questions related to water quality.  And this has to be very concerning to the City and the added parties - because he is the only technical expert presently on the Witness List who is going to speak to those issues.

How the hell did that happen?  Did the City drop the ball on this?  

First, let me say that with regards to Bowman's participation in the hearing, Artenosi might have a couple of really good points.  The questionable point is, as Bowman himself did not provide any evidence to the City in advance of the municipal decision being made in April 2018, can he now appear as an expert for Minnow Lake because John included his evidence as an affidavit in his case synopsis?

The answer to that question - which would not have been apparent in November, 2018 - appears to be "yes".  The LPAT appears to be routinely accepting expert witness evidence filed as affidavits to appellants case synopses - even though those experts did not provide oral or written evidence to a municipality before making a decision.  The LPAT appears to be allowing this as long as said expert evidence doesn't veer into new areas for the appeal.  So in Bowman's case, since John raised issues with water quality as per the Provincial Policy Statement, Bowman can talk about water quality.

My initial reaction to this was that all of this appears to be 'new evidence' and I think that's a part of the concern that was raised by Artenosi at the CMC.  Bowman is likely to say things to the LPAT that no one ever really said to Council.  Sounds 'new' to me - and yet....

And yet a very high profile case in Windsor, with a very high-profile "after the fact" expert, appears to be going forward without anyone blinking an eye.  Windsor CAMPP appealed a municipal land use decision to permit a hospital on rural lands outside of the City's settlement area - something CAMPP argues isn't in keeping with the City's official plan.  After making submissions to Council to this effect, CAMPP filed an appeal.  After filing an appeal, it retained former Director of Planning for the City of Toronto (and former Mayoral candidate) Jennifer Keesmaat to provide affidavit evidence as part of its case synopsis.  Like Bowman before her, LPAT has included her on the witness list.  And I still worry that this opens the door to new evidence.

Bowman as Hinge

Anyway, even though Artenosi isn't likely to have Bowman excluded on that matter, based on materials filed in support of his motion to dismiss John's appeal, I think he's got an ace up his sleeve.  For unlike Keesmaat, who is a professional planner, it's not clear that Bowman's qualifications will meet the LPAT's tests for an expert witness.  No doubt Bowman's "expert" status will be challenged on those grounds - and on the grounds that Bowman has not behaved as an "expert" should - but instead has been acting as an advocate for the Minnow Lake position.  And ultimately, even if the credential thing is decided in favour of Bowman, I just can't see the Tribunal treating him as an 'expert'.  

Which means Bowman's evidence around water quality issues will be no better than my own.  He, like me, will be just some guy offering up our own non-professional interpretation of how we think the PPS should work.  And again, that's not exactly a winning strategy.

But without question, Bowman is a hinge in this hearing.  The City and added parties need to exclude him - because if he is an expert, they've offered no one to rebut what he has to say.  And to loop this back to the beginning where we discussed the motion of the added parties - that's probably why the added parties are seeking to have their own "appeal records" and "affidavit evidence" included now - because they don't want to risk having no one counter Bowman's expert evidence on water quality.

Frankly, I don't think they need to worry. 

It's Miller Time 

And now that I've gone through the motions, it's time for a nice glass of wine.  Or maybe several shots of tequila.  I hope you've had more fun reading this than I did writing it, but I think we're probably both worse off and in a bad place right now.

(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)

Trudeau Must Shift From Climate Delayer to Climate Champion

The following first appeared in print and online in The Sudbury Star on Saturday, April 20 2019 (see: "May: Trudeau must shift from climate delayer to champion").  Please allow me a moment for a little shameless self-promotion (because, after all, if I don't promote myself, who will?).  It's often been suggested to me that the things I write about are extremist, or at least politically unpalatable.  The same criticism is often made about Green parties.  And yet, I know that more and more the ideas that I've been writing about for over a decade now are starting to filter into mainstream thinking.  Nevertheless, for those on the right side of the political spectrum, the notion that we'll transform our economy from a fossil fuel-driven one to a true 'green economy' stand at odds with their perception of reality.

And trust me, they're not afraid of telling me just how 'at odds' their reality is from my own.

Anyway, since writing this piece, a really excellent blogpost from former Liberal National Policy Director Jamie Carroll was picked up the National Newswatch media aggregator (see: "Killing TransMountain Pipeline expansion could be Trudeau’s path to victory," National Newswatch, April 22 2019).

Carroll, although coming at the issue from a completely different perspective (as evidenced in the title of his original post from his  Fool From the Hill blog, "I'm an Asshole. Is Justin Trudeau?" April 21, 2019) essentially suggests the same things that I do in my piece: that Prime Minister Justin Trudeau and the Liberal Party should look at kiboshing the Trans Mountain pipeline as a part of a successful re-election strategy.

I point this out for several reasons.  First, when I read Carroll's piece (first brought to my attention via National Newswatch), I was thrilled to see that a Liberal strategist and I were in agreement that killing Trans Mountain was a viable political strategy for Justin Trudeau to pursue. Our motivations might be different (I want to save the planet, Carroll seems to want to see the Liberals re-elected), but that only reinforces, for me at least, that the idea of killing Trans Mountain is a viable one in that it could be a bit of a consensus move for those on the left and moderate right of the political spectrum (I always have and will continue to insist that the Liberals inhabit the right side of the political spectrum).

Second, Carroll obviously carries the kind of clout that one needs to gain national attention to start this kind of conversation.  And start it he has.  Today, Macleans Magazine Politics Insider newsletter (which you really ought to subscribe to if you haven't already) links some of the dots and reports that there might be something happening behind-the-scenes here, despite outward pooh-poohing by Liberals. I still think this government outright killing the project is very unlikely - but there's no denying the signs that they're at least mulling it over.  

Those signs include the suggestion made yesterday by federal Natural Resources Minister Amarjeet Sohi that a decision on Trans Mountain could be pushed back by the government until after the next election (see: "No guarantee of federal decision on Trans Mountain pipeline before election: Sohi," the Canadian Press, April 25, 2019).  This comes just a week after Sohi scuttled the government's mid-May decision deadline in favour of mid-June - ostensibly to buy the government some time to consult with indigenous peoples.

And that could play a part in what appears to be the government's new aggressive environmentalism.  Just yesterday, the government announced a ban on mining, oil and gas activity, waste-dumping and bottom trawling in Canada's protected marine areas (see: "Canada banning oil, gas and mining from marine protected areas," the Canadian Press, April 25, 2019) - although it does leave one wondering just how 'protected' those marine areas really were given the need for this action.  

And of course, the Prime Minister himself has really upped his game over the past couple of weeks on climate change.  Yesterday, with a nudge and a wink at Andrew Scheer's Conservative Party, he decried that some Canada's opposition parties are climate change deniers (see: "Trudeau says Ontario 'shortsighted and irresponsible' for challenging carbon tax," CBC News, April 25 2019).  

Taken together, there might be something here - and some hope for Canada that the Liberal Party really is going to get serious about climate change.  I continue to be concerned, however, that it's all just a part of another Liberal electoral deception - greenwashed rhetoric with the goal of pulling the wool over Canadian's eyes just long enough to win back the government.  I want to see real action while they still have the time - and the power - to do so.

Killing the Trans Mountain pipeline is the kind of evidence of seriousness that I'll be looking for.

Now, here's my Sudbury Star post from this past weekend.

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Since polls closed in Alberta earlier this week, and it quickly became evident that Jason Kenney’s United Conservative Party had swept Premier Rachel Notley’s NDP from power, everyone seems to have a little advice for Prime Minister Justin Trudeau. Trudeau and his Liberals face an increasingly volatile electorate, with conservative parties having seized power in four provincial capitals within the past year. Many see this as a harbinger of things to come for his government. But Kenney’s election actually presents Trudeau with an opportunity, if only he has the temerity to seize it.

On the campaign trail, Kenney committed to following in Ontario Premier Doug Ford’s footsteps by scrapping many of the climate change initiatives put in place by the previous government, including a provincial price on carbon pollution (see: “Jason Kenney’s plan for more climate change,” Jason Markusoff, Maclean’s, April 1, 2019). Kenney outright campaigned on raising greenhouse gas emissions and exacerbating climate change.  Alberta voters seemed not to care.

Without question, Trudeau has lost a couple of important climate allies in Alberta Premier Rachel Notley and former Ontario Premier Kathleen Wynne. In 2015, Trudeau campaigned on the idea that he could both build new pipelines to expand the tar sands while reducing emissions so that Canada could meet its Paris climate targets (see: “Oilsands pollution on collision course with Canada's climate plan,” Barry Saxifrage, National Observer, February 20, 2018). That so-called plan never made any actual sense – but it came to be seen as some sort of ‘grand bargain’ between the economy and the environment. To this day, it’s a position that the Liberals cling to, despite the overwhelming evidence that we can’t reduce emissions while expanding and creating new fossil fuel enterprises.

With Notley now out of the picture, the federal Liberals can finally get serious about climate change. Notley’s climate plan was anything but a serious commitment to reduce emissions. The Alberta NDP’s plan would have seen the tar sands grow to take up 22 per cent of Canada’s carbon budget by 2030 – and a whopping 78 per cent by 2050 – leaving little room for emissions from virtually every other sector of the national economy. And Kenney is greedier for an even larger share.

Notley, and now Kenney, need the Trans Mountain pipeline to move bitumen from an expanded tar sands. Unlike Notley, Kenney is hardly a friend to Trudeau. What Trudeau couldn’t say to Notley about Trans Mountain, he can — and should — say to Kenney.

The political payoff for the Liberals could be significant. To win the next election, the Liberals need only be successful in four regions — the Atlantic provinces; Quebec; the Greater Toronto Area, and B.C.’s Lower Mainland. With NDP support flat-lined and that party unlikely to elect an MP east of Sturgeon Falls, the Liberals ought to be doing what they can to pick up NDP support. Polls show that’s exactly what they’ve done in Quebec, but the other regions might be tougher nuts to crack without more of an incentive.

Trudeau and the Liberals could give NDP supporters reasons to vote for them in October by outflanking the New Democrats on the environment. The Liberals have now given themselves until the middle of June to make a decision on Trans Mountain. If the Liberals said ‘No’ to the pipeline and took it out of play, Trudeau could leave Jagmeet Singh holding the LNG bag by also opting out of public subsidies previously committed to a huge new fracked natural gas enterprise in northern British Columbia.

With regime change in Ontario and Alberta, the way forward for Trudeau is clear.  Without allies to hold him back, swift and effective unilateral action is called for. It’s time for the Liberals to walk their talk on climate change. I may be a partisan of a different stripe, but if Trudeau were to finally make the shift from climate delayer to climate champion, he would have my support.

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

Some Hard Take-Aways for Greens from Last Night's Election in Price Edward Island

Greens across the nation woke up this morning to welcome news that the PEI Green Party, under able leader Peter Bevan-Baker, surged at the polls on Tuesday evening, electing a caucus of 8 Greens - the largest contingent of Greens ever to enter a legislature together anywhere in North America.  With 30.6% of the popular vote, Bevan-Baker is ready to sit as Leader of the Official Opposition to a Dennis King-led Progressive Conservative minority government.  And of course there's idle speculation that Bevan Baker and the remnant group of 6 Liberals could get together and oust King and his 12 PC's to form a government of their own - although I think that's unlikely to happen.

Election Results - from Elections PEI

By almost every account, what happened last night to the Green Party in PEI was enormously good news for Greens everywhere - and yet more evidence of a growing surge of Green support.  I say "by almost every account" because I'm about to rain on everyone's parade with this blog post.  But I think what I have to say needs to be said - if only to temper Green expectations over the coming year, and perhaps to inspire Greens towards the hard work that we need to undertake if we really are going to have a shot at being anything more than irrelevant in the coming federal election.

PEI is Unique

First of all, PEI is simply not representative of the rest of Canada.  It's a very small province with its own unique set of issues. It's population (142,900) is less than that of my home city - Greater Sudbury.  The Liberal government under leader Wade McLauchlan had grown long in the tooth - and Islanders seem to schedule changes in their government the same way that they schedule dental appointments.  It was time for McLauchlan to go.  And when it's time for the Liberals to go, Islanders turn to the PC's.  And when it's time for them to go, they turn back to the Liberals.  This trend has been going on for decades.  Note that the trend was NOT upended by voters last night.

Peter Bevan-Baker

The success of the Green Party in PEI really did come out of nowhere.  The Greens had only run candidates in three elections prior to Bevan-Baker being elected to office in the 2015 general election (see: "Green Party Leader Peter Bevan-Baker makes P.E.I. political history," CBC News, May 4, 2015).  Greens may recall that PEI Greens used the "beachhead" strategy in PEI - by putting all resources into electing a single member of the legislature, and then using that credibility of that member to inspire voters to cast ballots for Greens elsewhere.  The federal Green Party tried this in 2008, but failed to elect our Leader (who was then running in Nova Scotia).  In 2011, May was elected in Saanich-Gulf Islands - but 8 years later, she continues to sit alone in the House as no other federal Green has ever been elected.

But PEI was a different story.  It all went according to plan for the Greens.  Bevan-Baker was soon joined by Hannah Bell, who won a by-election.  And then there was last night, which saw the Greens move from just a single beachhead seat in 2015 to 9 in 2019.  They may not sound like many, but keep in mind, PEI's legislature consists only of 27 seats - and only 26 of those were being contested last night - the election was postponed in District 9 due to the tragic death of Green candidate Josh Underhay, who died in a canoeing accident with his young son on Good Friday, just days before the election (see: "P.E.I. Green candidate, son die in canoeing accident days before election," CBC News, April 20 2019). A by-election will be held in District 9 in the near future - but the outcome of that by-election will not change the standings of the three parties.

Narrative: Voters Can Confidently Vote for Green Candidates

What happened in PEI was unique to PEI.  I know that Greens in the rest of Canada want to read a lot into this - our narrative, after all, has been and continues to be that voters are showing a growing confidence that voting for the Green Party achieves results - that the old paradigm that a vote for the Greens is a wasted vote just doesn't hold up any longer.  Greens have, after all, been elected to provincial legislatures in New Brunswick, in Ontario and in B.C., where they hold the balance of power over a NDP minority government.

And 8 Greens elected in PEI feeds that narrative.  I don't think there's any denying that the narrative, generally speaking, is a good one, and is somewhat supported by the evidence.  But Greens should keep in mind that the narrative really only works in a handful of ridings - and most of them are on Vancouver Island, with maybe one or two elsewhere in B.C., perhaps one in Ontario, one in New Brunswick and maybe now one in PEI (and I want to say one maybe in Quebec, where the Green Party has been polling well, but I really don't believe that).

Of course, all of that can change - especially during a campaign.  If the PEI election proved any point last night, it's that campaigns matter.

PEI Green Support Faded Away

Yes, campaigns matter.  The real story about what happened last night was indeed about the Green Party - but not in the way that I'm sure almost every Green thinks it was.  Overlooked in all of the celebration is the following question, which I'm sure is looming large in the recesses of PEI Greens today.

What happened to the Green vote?  Where did it go?  Because a good deal of it didn't show up at the polls last night.

Look, I understand - to anyone who has been involved with the Green Party for any length of time, the idea of pulling in 30.6% of the popular vote seems akin to achieving some kind of Green electoral nirvana.  But if what happened last night happened to any other party, headlines in today's papers would read "PC's Win as [Insert Party Name Here] Vote Collapses at Last Minute".

Let's not forget that Bevan-Baker's Greens had been consistently polling at above 34% since early 2018.  A poll conducted in late-February, 2018, pegged Green support at 34% (see: "P.E.I. Green party now in second place: CRA poll," The Guardian, March 6, 2018).  Greens were still at 34% in June, 2018 (see: "UPDATE: Liberal support declines, tied with Greens in P.E.I. political poll," The Guardian, June 6, 2018).  And in March, 2019, heading into the election, Greens were up to 37% (see: "UPDATE: P.E.I. Greens maintain lead, Liberals slip below PC’s in latest opinion poll," The Guardian, March 7, 2019).

And last week, a poll released from a firm called MQO Research (whoever that is) had Green support at 40%, which is majority government territory.

All of the polling, however, proved to be somewhat wrong.  Mainstreet Research's poll released on April 18 illustrates the point: Mainstreet had the Greens at 35.4, the PC's at 30.5%, the Liberals at 29.2% and the NDP at 3.9%  (see: "PEI Greens Hold Lead, Governing Liberals In Third," Mainstreet Research, April 18, 2019).  Mainstreet's poll was pretty accurate as far as the Liberal and NDP vote went (the Liberals ended up with 29.5% of the popular vote, and the NDP just 3%).  But Mainstreet, like all of the pollsters, under-predicted the success of the PC's, who finished with 36.5%, and over-predicted Green support.

The real story of the night was the moderate collapse of Green support - but since many in the media have been skeptical that the reported "Green support" existed in the first place, that's not what's been making headlines.  But for a Party to be leading in the polls for over a year to suddenly find its level of support reduced by 7-10% on election night - that's a pretty big loss, no matter how you count it - and no matter who the Party is.

The Real Story - The Masterful Rise of Dennis King and the PC's

The other story from last night, of course, was the stunning rise and success of the Progressive Conservative Party under new leader Dennis King.  The PC's, who were polling at just 17% a little over a year ago, saw their support steadily increase.  On the eve of the election call, polls had PC support at 29%.  By the time election night rolled around, the PC's were able to add another 7 percentage points - which is just about what the Greens lost over the course of the campaign.

Dennis King (from torstar publishing)

And that's why campaigns matter.  It took a year for the PC's to move 12 points, but just a month to move 7 points.  For over a year, the Green Party hovered between 34% and 37% - but it lost between 4 and 7 points in a month.

The Green Party and Polling

So what happened?  During the election, pollsters and others were expressing concerns that the Green Party's vote not be very efficient.  With the New Brunswick election still fresh in mind - where the Liberal Party won the popular vote by 11% but did not win the most seats - efficiency seemed a real concern for the Greens in PEI, as many thought that the Greens vote would be concentrated in a small number of ridings - so even a high popular vote total might not translate into a high number of seats (and it's worth noting that this concern is yet another unique matter for PEI - elsewhere across the country, Greens have a different problem with support - the popular support is never concentrated enough to elect Greens).

But the concerns around 'efficiency' didn't appear to have materialized.  On the day after an election, Greens like to point out how many seats they would have won if the election was conducted with proportional representation based on the popular vote.  In the case of the PEI Green Party, proportionally speaking, Greens should have won 8 seats - the same as they did win under First Past The Post.  The Liberal Party, which pulled just 1.1% of the vote lower than the Greens, suffered the injustice, electing just 6 members under FPTP (in a PR scenario, the Liberals should also have 8 seats).

I speculate (and it is only speculation) that what's happened to the Green Party throughout Canada also happened to the Green Party in PEI - that either a) pollsters are simply getting it wrong when it comes to Green Party support, or b) voters, once they enter the polling station, lose confidence in the Green Party's ability to succeed at the polls and vote for other parties - we call that 'strategic voting'.

Let's look at a) first.  If you follow the polls, it's hard not to notice that Green Parties hardly ever live up to the pre-election expectations of the pollsters after all of the votes have been counted.  There is usually a gap of around 20% or so.  A good rule of thumb for Greens to keep in mind is that the polls almost always over-predict our support.  And that doesn't bode well for the Green Party of Canada - which has been stuck somewhere between 8% and 10% in the polls lately (poll aggregator 338 Canada presently pegs GPC support at 8.8%).  Hack off 20% of that support and you're left with about 7% - which is still pretty high for the Green Party of Canada, but not significantly higher than our best result (the highest level of support we've had nationally was 6.8% in the 2008 general election - when we failed to elect a single MP) - and absolutely not where we want to be heading into the federal election this fall.

The Stubbornness of Liberal Voters

And it's another take-away from last night's election that is going to make life very difficult for the Green Party of Canada to move its numbers.  We saw something similar happen in Ontario in the 2018 general election to what happened in PEI last night - and we might see the same thing, on a micro-scale, happen in the B.C. riding of Nanaimo-Ladysmith by-election next week.  That 'trend' is that Liberal voters, knowing their Party trailed in the polls (in third place in Ontario and in PEI) did not abandon the Liberal Party.  The Liberal vote did not collapse - and as a result, the parties who are the presumed beneficiaries of a Liberal collapse did not benefit.  In Ontario, that would have been the NDP - and many New Democrats remain bitter with the Liberals here to this day because they continued to fight to the bitter end.  

In PEI, the polls had the Liberals in the mid-20s, which means that they were largely out contention to govern with two parties ahead of them.  But Liberals on the Island were unmoved - they continued to support McLauchlan and showed up in the polls in numbers large enough that the final vote tally had them within 1.1% of the Green vote.  

This is actually a bit of an interesting phenomenon.  Pundits often look for (and target) supporters of third place parties and candidates - telling them not to waste their vote, and instead support second best in order to keep the evil at bay.  That's what strategic voting is, and we often see it play out (indeed, it's almost certainly what happened to the NDP in the 2015 federal election - an election which saw their caucus reduced by almost half thanks to a surging Liberal Party under the leadership of Justin Trudeau.  It might happen to the NDP again in 2019).  But when it comes to Liberal supporters, it seems that this trend just doesn't take hold in the same way.  Indeed, a collapse of Liberal support last night was expected - it should have happened - but it didn't.   If you buy into the Strategic Voting narrative, there's a very real case to suggest that Liberals supporters wasted their ballots - to the detriment of the Green Party.

And if that Liberal support - even at reduced numbers - remains solid even in the face of an expected loss, the Green narrative of "lend us your vote - you can have confidence in us that we'll win" goes nowhere.  And if we're going to succeed on election night, we need to succeed before the official campaign gets underway, by getting our support at the polls up to at least 12% - higher would be better.  And, as I've said before and will say again, it's New Democrats that we need to target.

The Continuing Rise of the Right-Wing Throughout Canada

Finally, one last word about PEI and stunning success that Dennis King and the PC's pulled off last night.  Without question, King's election on PEI has to be viewed as part of a wider national (some would say international) trend that is showing a rise of right-wing support, some of it extremist.  By all accounts, King and most of his PC caucus would be more at home in a Kathleen Wynne or Rachel Notley government than a Doug Ford or a Jason Kenney-led one.  The PEI PC's are not exactly this new breed of extremist-Conservatives that we've seen emerge over the past decade.  But it's hard to suggest that PEI isn't immune to this global trend, and King was the only party leader in place to benefit from it.

Andrew Scheer - from CBC News

Going forward in 2019, the rise of the right is likely to remain the primary electoral story.  I get that this is troublesome for Greens and others not on the extremist right of the political spectrum - many of whom want the next federal election to be about climate change or fiscal responsibility or whatever.  You can pretty much kiss all of that good-bye.  With gobs of money in the bank, and third-party actors (including the Premiers of several provincial governments who aren't afraid to intervene in the federal election - and who appear intent on using taxpayer's money to do so), Andrew Scheer and his Conservative Party will be calling the tune that all of the other parties have to dance to.  The media might cling to the notion that there is no one single narrative in the next election - but the media is growing increasingly irrelevant at dictating electoral narratives.  Facebook ads and social media contacts will drive the next election.  And the Conservatives are the only party that are in a position to benefit from this new reality.

The Rise of the Right - Are Greens a Part of the Problem?

And that doesn't work for Greens, either.  Not only would a Scheer government be anathema to everything Greens stand for, but we have really only one way to prevent it from coming about - and it's not exactly a palatable option for Greens.  Our problem is that a Green Party that pulls 10% of the popular vote only benefits the Conservative Party to any real extent.  At that level of support, we might elect 3 or 4 Greens, but what we end up doing is getting in the way of other non-Conservative candidates.

We wanted to be able to say to voters in this election, "Don't worry about Andrew Scheer - the People's Party is eating at his support.  You can confidently vote for us now knowing that there will still be a Liberal government in Ottawa on the day after the election."  But that narrative has completely fallen apart, thanks to Trudeau's idiocy over Lavscam, and Conservative Party spending.  Voters will once again be confronted with strategic voting as a very real option to keep the evil at bay - and in that scenario, Greens don't benefit anywhere outside maybe Saanich-Gulf Islands, Victoria and maybe Esquimalt-Saanich-Sooke and (if Paul Manly can win), Nanaimo-Ladysmith (and right now, if I were a betting man, I would put my money on Manly losing - although I'm not yet sure to whom).

Taking a Hard Look in the Mirror

With all of this in mind - plus a New Democratic Party which, if it's not collapsing, is certainly completely mired in the mid-teens (and I'm still seeing collapse because the NDP is done east of Sturgeon Falls - Quebec is gone, and they've already been wiped out in the Maritimes), what is the Green Party to do?  As a Green Party supporter, I may not believe much of what Justin Trudeau has to say about things that are important to me - but I absolutely believe that Andrew Scheer is serious when he says he'll kill the carbon tax and exacerbate the climate crisis.  The Liberals aren't what Canada needs right now, in my opinion.  But Scheer would be a disaster for our nation and planet.

Maybe it's time for Greens to face up to this reality - the stakes are too high now.  Maybe the lesson that Greens should learn from the PEI election is that we need to stand down in those ridings that we can't win - but where our participation can impact the outcomes. And here I'm looking at Greens running in B.C.'s lower mainland, in the Greater Toronto Area, in Quebec and in the Maritimes.  Those are the places the Liberals need to make gains in or hold.  Maybe we ought to give them and the NDP a hand-up.  Because nobody else is going to.

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