Much of Czech writer Franz Kafka's work centred on individuals trying – and failing — to navigate a dark bureaucracy designed to be as complicated and inscrutable as possible.
It's a good description for Ontario's planning laws — and the challenge facing the three-member Local Planning Appeals Tribunal as it enters the uncharted territory of trying to make the appeals process shorter.
The former Ontario Municipal Board, which the LPAT replaced early this year, was notorious for taking years and years to make a decision. The LPAT, in contrast, was to have definite decision timelines, a much more controlled process and the job of identifying whether planning laws have been violated and whether altering the decision would bring it in line with the law.
In practice, however, planning lawyers have been challenging the streamlined process, and tribunal members themselves don't even know whether the new rules will stand up to court challenges.
As one observer said Tuesday, the Kingsway and other early cases will determine whether the LPAT can make sausages any better than the OMB. And whether the former Liberal government's hasty planning reforms will hold up in court.
The uncertainty notwithstanding, some clarity did emerge from Tuesday's case management conference. One is the fact lawyer Gordon Petch – who's representing two Kingsway opponents — is determined to raise as many issues as he can to drag out the process as long as possible. With the city aiming to begin construction of the arena in the spring to keep to their timelines, a lengthy delay of a decision would be a victory in itself for those trying to stop the KED.
The second thing that seems clear is the importance of agreeing to what issues the LPAT needs to decide. The city is arguing that six of the issues Petch raised are beyond the tribunal's scope. They include his argument the city has to hold a referendum before allowing the casino, that a socio-impact study has to be done for the casino, and that an economic impact study has to be completed before moving the area.
The issues are a major part of Petch's case, and if the LPAT rules they are irrelevant to a planning decision, it would create a big problem for the anti-Kingsway groups.
Even if he loses that fight, you get the impression Petch will appeal the decision to divisional court. In fact, Sudbury's process will likely have to wait for a decision from the same court in a Toronto case, where the court will rule whether the LPAT can prevent each side's lawyers from cross-examining witnesses as part of the hearing. That's what the legislation says, but we'll find out whether the law holds up in court.
That's been the trend early on for the LPAT, as it looks for the court to rule whether its brand spanking new process has a sound legal basis. Longer term, we'll have a better idea of how quickly this process is going to work.
For now, there will be a lot of looking over the shoulder by the LPAT at the courts to see how they rule. And for anyone hoping for a quick decision, that's not good news.
The first step in addressing appeals of the Kingsway Entertainment District showed just how much uncharted legal territory the parties will have to navigate throughout the process.
The Local Planning Appeal Tribunal (LPAT), created late last year by the outgoing Liberal government, aims to speed up the time in which planning disputes are settled. Under legislation, a decision on the Kingsway should be made by June 2019.
But meeting Tuesday in Sudbury, the three members of the tribunal pressed “pause” on that timeline, admitting there are several issues to be dealt with before they will have an idea of how long the process will take.
Squaring off were lawyers for Greater Sudbury, Gateway Casinos and developer Dario Zulich opposite Gordon Petch, a veteran municipal planning lawyer representing two of the people fighting the Kingsway (Tom Fortin and Christopher Duncanson-Hales), as well as residents Steve May and John Lindsay, who represented themselves.
While Tuesday's hearing at the provincial building downtown was supposed to determine the issues that will have to be addressed at the full hearing stage, disagreement over the issues made that impossible.
Specifically, Stephen Watt, the lawyer representing the city, is arguing six of the issues raised in the appeal are beyond the scope of the LPAT, including the argument the city had to have a referendum before approving the casino.
When LPAT member Chris Conti suggested they could still try and narrow down the issues not being challenged, Petch said that didn't make sense since that decision will impact how the rest of the process proceeds.
“There is no agreement on any issues,” he said, adding it made more sense for a ruling on the jurisdiction first.
While he suggested a hearing for January, a second CMC in March and a hearing in June, the tribunal instead opted for written submissions from both sides by next month, to be followed by a second case management conference to be held by telephone, rather than in person.
The LPAT will also have to rule whether lawyers for Gateway and Zulich, which have been granted status at the tribunal, will be allowed to respond to the appeals filed to try and stop the Kingsway project. And Petch is arguing he should have the right to respond to the responses.
Making matters even more complicated, the tribunal is waiting for an Ontario divisional court to rule on a somewhat related matter in Toronto.
In that case, which is about conversion of downtown lands into a rail park, the tribunal is waiting for a ruling on whether its own rules are legal. Specifically, LPAT legislation doesn't allow parties to call or cross-exam witnesses — only tribunal members have that right. The divisional court will rule whether that's legal.
“So that leads to some uncertainty with the tribunal's ability to book hearing dates,” Conti said. “While we hope that the divisional court will deal with this as soon as it can, we're not quite sure when we'll have that decision.”
After meeting for more than five hours, the LPAT concluded, unable to set even a date for the second CMC until they decide on the jurisdictional issues sometime next month.
“We believe the city has a strong position in its response to the appeals throughout the process,” the statement said. “I am confident in the project and that it will mean great things to the community.”