On Sunday evening at 9.41pm an email arrived from Bob Forrest's lawyer, the feared and slightly sinister Kim Jong Kagan. As you would expect, the email had the whiff of North Korea about it.
Mr Kim's email reads:
Subject: RE: Main Street Clock Tower OMB Appeal
Mr Prentice. I attach a pdf of one of your latest blogs (May 5th). It raised a question in my mind which I should appreciate your response to. Did you have an audio recording device at the May 3rd prehearing conference? Did anyone else have one that you were aware of?
Kim Jong Kagan
I had my Apple iphone with me. It is a recording device but it wasn't switched on. I suspect many of my readers who attended the prehearing (including Mr Kim himself) had similar recording devices. If yours was in record mode it is important you let me know and I shall send your details on to Mr Kim. What happens then is up to him. But, be warned, it could be very painful.
Filming not allowed
The OMB's rules of practice and procedure make it clear that Hearings are not recorded by the OMB.
"You may also arrange, at your own expense, for a Court reporter to transcribe the hearing. Filming the hearing is not permitted. For an audio recording of a hearing, you must request permission in advance of the hearing."
I would like to see a record kept of all OMB hearings. It seems faintly absurd to me that millions of dollars can turn on an OMB decision and there is no record of who said what. Yet proceedings in the Small Claims Court are transcribed. Maddie Di Muccio's ludicrous claim against Regional Councillor John Taylor for $5,000 in damages for hurt feelings is captured word for word and stored in a locked vault somewhere.
Changing the dynamics
Having a record also changes the dynamics. Everyone is on their best behaviour. Including the OMB adjudicator. Self represented Parties should be treated with respect and consideration and should not be regarded as an unwelcome intrusion. I am certain having a record helps.
In fact I owe it to Kim Jong Kagan who first alerted me to the fact that OMB hearings could be recorded. On 23 June 2013, at the Glenway Lessons Learned meeting, I was beckoned over to Mr Kim's table to join the great man. I did so with great trepidation. People have been known to disappear after meeting Mr Kim.
Most people think of lawyers as men in grey suits. But that evening Mr Kim was resplendent in a colourful Hawaiian shirt and he had a deep tan. He spent much of the evening gazing, in a distracted way, at his recording device.
As it happens, I was not recording our conversation but I have total recall of what was said. I told him it was a tragedy the Glenway OMB Hearing was not recorded and that everything that had been said had disappeared into the ether. It was then he told me any Party could request a record be taken.
With this earlier advice in mind, I contacted Newmarket's Chief Administrative Officer, Bob Shelton, on 10 April 2017, asking the Town to arrange for a transcript to be made of the Clock Tower OMB hearing. My email was forwarded to Esther Armchuk, the Commissioner for Corporate Services and former Town Solicitor. The following day, she told me:
"Your request that the Town arrange for a transcript of the above-noted proceedings has been forwarded for my attention. The Town will make a determination about whether of not to retain a reporter/transcriber for this hearing in consultation with our external legal counsel."
Audio recording is required
Armed with all this information I am now summoning up the courage to approach Mr Kim with a request that he, on behalf of his client, will raise no objections to an audio recording being made of the forthcoming OMB Hearing on the Clock Tower.
I hope to see you all again.
As a postscript, I hope Mr Kim is not billing his client, Bob Forrest, for entertaining emails sent out on Sunday evenings.
email to Bob Shelton requesting a transcript (10 April 2017)
I am writing formally to request the Town to arrange for a transcript to be made of the forthcoming OMB Hearing on the Clock Tower. As you know, Parties can have a transcript made of the proceedings.
There are some compelling reasons why we should have a transcript.
1. A transcript will be a permanent record of a Hearing whose significance extends well beyond Newmarket.
2. A transcript will help us understand how the adjudicator came to his or her decision.
3. A transcript will change the dynamic of the Hearing with all the actors (the Parties and Participants, lawyers, planners, Newmarket staff, witnesses and so on) being aware that a record is being taken of the proceedings.
4. Millions of dollars can ride on an OMB decision. The expense of getting a transcript done is very small beer indeed when compared with the expense of defending the municipality's position at the OMB. As you know, Glenway cost the Town $588,291 and, unfortunately, no transcript was taken. The arguments and debate have all disappeared into the ether, lost forever.
5. Perhaps as a result of this, one of the recommendations coming out of the Glenway Lessons Learned exercise was that, in future, a transcript should be considered.
6. The Government is currently considering OMB reform and the Clock Tower could well be a useful case study.
When I was sitting in for the Metrolinx presentation at the Committee of the Whole earlier this afternoon I noticed that a person was sitting on your right, apparently taking a verbatim note of the proceedings. Perhaps the Town employs a stenographer?
I look forward to hearing from you.