Earlier today, I wrote to Bob Forrest's lawyer, Ira Kagan, in these terms:
"On 3 May 2017 at the OMB pre-hearing on the Clock Tower you told the OMB adjudicator, Mr Blair Taylor, there was no difference from the outside between the original application submitted by Main Street Clock Inc and Option B which you presented to the pre-hearing that very morning.
In the absence of a transcript or audio recording I should be grateful if you would confirm this is what you said."
Mr Kagan replied:
"What I said at the PHC (pre-hearing conference) was that when viewed from Main Street and Park Street, (sic) that the development was essentially the same. I indicated, for example that it remained 7 stories in height but that the number of dwelling units was less. The same cannot apply to Market Square since that is where the land swap was contemplated."
I didn't hear Mr Kagan draw the adjudicator's attention to the Market Square side of the proposed development where there would be visible differences between the original application and Option B. I didn't hear him tell the adjudicator the Market Square elevation was not available. Mr Kagan was flying by the seat of his pants.
We do not yet know the extent of these visible differences because, astonishingly, we do not yet have the Market Square elevation nor do we have an artist's impression. I am assuming that Mr Longo (Counsel for the Town) is asking for this information. And if not, why not?
Given Mr Kagan's earlier demand that I give him a personal assurance I was not audio recording the pre-hearing, I now believe audio recording is now more essential than ever. Starting at the pre-hearing phase. And I would like the Town to arrange for this.
People will want to fact check everything that is said.
Earlier today, I wrote to the Town's Commissioner for Corporate Services, Esther Armchuk:
"You will recall you told me on 11 April 2017 that the Town would consider retaining a reporter/transcriber for the OMB Clock Tower Hearing in consultation with Mr Longo.
On 14 May 2017, Mr Ira Kagan, Counsel for Main Street Clock Inc, was in touch with me asking if I had audio recorded the OMB pre-hearing on 3 May 2017 or if I was aware that anyone else had recorded it. I told him that I did not record the pre-hearing nor was I aware that anyone else had.
During the course of that pre-hearing, the adjudicator Mr Blair Taylor, invited Mr Kagan to speak to the appeal that was in front of the OMB.
Mr Kagan described the original application and an Option B, declaring there was no difference between the two "from the outside".
Mr Longo told Mr Taylor that he was prepared to accept, on his friend's word, that Option B looked like the original application.
The difference or not between the original application and Option B is a matter of some importance and, in the absence of a transcript or audio recording, I am writing to Mr Kagan to ask him to repeat in writing to me what he told Mr Taylor.
It seems to me this underlines the importance of having a record of what is said at pre-hearings and at the OMB hearing proper.
Now that Mr Kagan has put the thought into my mind I am content with an audio recording (rather than the more expensive transcript) and I would be grateful if you would take this as a formal request.
I am copying this to Mr Shelton."
Ms Armchuk replied:
"As this appeal is now before the Ontario Municipal Board, it is the Board who decides whether proceedings may be recorded and/or subscribed. I have been advised that at the Pre-hearing on May 3, 2017, you requested Party status on behalf of the ACO. I understand your request was adjourned for consideration at the next Board Pre-hearing. Any person can make a request to the Ontario Municipal Board to permit an audio recording of the proceeding. As a result you may make that request directly to the Ontario Municipal Board."
Town should request audio recording
For the avoidance of doubt, M'Lud, I am making the request to the Town of Newmarket, as a principal Party. I want the Town to seek approval from the Board to make an audio recording of the next Pre-hearing on 11 August 2017 and any subsequent OMB Hearings.
The Town may be on course to spend hundreds of thousands of dollars defending its position on the Clock Tower at the OMB. And, after the searing experience of Glenway where the Town's performance was truly lamentable, it is in the clear public interest for the Clock Tower OMB Appeal to be audio recorded.
Ms Armchuk sat through the Glenway OMB Hearing from start to finish as I did. I winced at the appalling incompetence of it all. And there is no record to show just how bad it was.
I thought the Town had learned from Glenway.
The relevant sections of the OMB's Rules of Practice and Procedure state:
91. Media Coverage - Photographic, Audio or Video Recording
No person shall take or attempt to take a photograph, motion picture, video recording, or other recording capable of producing visual or aural representations by electronic means, or otherwise, at any proceedings of the Board otherwise open to the public, unless the presiding Board Member authorizes the recording and the following conditions have to be satisfied by the person making the request:
(a) authorization for the request was submitted to the presiding Board Member or the Chair;
(b) the Board Member determines that the proceedings will not be disrupted or delayed if approval is given;
(c) the Board Member determines that the approval will not result in any prejudice to any party to the proceedings;
(d) the equipment must be of a type approved by the Board and be placed in locations approved by the presiding Board Member; and
(e) photographing and/or visual recording may take place only within the times designated by the Board Member prior to the commencement of the Board’s proceedings and no approval of the Board shall apply to any time during which the proceedings actually occur or in which the proceedings are in session.
92. Submissions to a Request
The Board Member shall afford the parties to the proceeding an opportunity to make submissions to the Board of any of the items set out in Rule 91 and respond to those submissions. The Board may impose conditions to any approval necessary to ensure the items in Rule 91 are satisfactorily addressed.
93. Withdrawal of Approval
The Board may withdraw permission to record temporarily or permanently if the conditions are not met, if any of the factors in Rule 91 become relevant, or if the Board in the circumstances cannot conduct a full and fair hearing.
Any party may arrange for the attendance of a qualified verbatim reporter, at his or her own expense, for the purpose of recording all testimony and submissions during a hearing event. Before a qualified verbatim reporter is permitted to record only part of a proceeding, the party retaining the qualified verbatim reporter must obtain the consent of the Board. In considering whether to provide its consent, the Board will consider, among other matters, whether to permit a record of only part of the proceedings would result in prejudice to a party.
If a party orders a transcript or partial transcript of the hearing event, the party must notify the Board, and the other parties to the proceedings that it has done so, and the Board shall receive a copy free of charge, if the Board requests a copy. The party must furnish the copy of the transcript to the Board within three days of the date of the party’s receipt of the transcript. The Board may at its own expense and on notice to the parties, order a transcript or partial transcript from the qualified verbatim reporter without furnishing a copy of the transcript to the parties; however, in any such case the Board will advise the parties that it has ordered the transcript and where the Board orders a partial transcript, the Board shall notify the parties as to the part of the transcript the Board has ordered.
Update on 19 May 2017: In the original email to Ms Armchuk the word pre-meeting was used interchangeably with pre-hearing.