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Town Pulls the Plug on Clock Tower Court Hearing

The Clock Tower Hearing at the Superior Court in Newmarket, due to come up tomorrow, Wednesday 15 November 2017, at 11am, is off. It has now been rescheduled - for the fourth time - to 14 May 2018. 

On 3 November 2017, the Town's counsel, Leo Longo of Bay Street lawyers Aird and Berlis LLP, requested a postponement for reasons which are still unclear to me. Papers were originally filed with the Court on 14 June 2017.

The Town wanted a declaration from the Superior Court that a land swap agreement it entered into in 2003 with the then Main Street property owner, Michael Bryan, is binding on Bryan's successor in title, Bob Forrest's Main Street Clock Inc.

Spanner in the works

If the Town succeeds it throws a spanner in the works leaving Bob with a development, as currently drawn, that is impossible to build.

It still puzzles me why the Town's counsel didn't ask the OMB to throw out the Forrest application without a hearing.

But that's yesterday's story. Today I want to know why the Town sought to postpone, yet again, the hearing of the application.

We know that Leo Longo was in discussions with Bob's counsel, Ira Kagan, about getting a suitable date that would work for both of them. On 7 July 2017 Longo emailed Kagan to confirm that

"...due to counsel availability, the return date for the hearing of this matter (Corporation of the Town of Newmarket v Main Street Clock inc) has been moved from October 20, 2017 to November 15, 2017 at 9.30am. The time allotted for the hearing of this matter is three hours."

The new date of 14 May 2018 is perilously close to the new start date of the OMB Clock Tower Hearing, set for 7 August 2018.  If the Court hearing goes ahead on 14 May the Judge will hear legal argument and then deliver his or her ruling, perhaps a month or two later.

Army of people

In the meantime and at great expense, a small army of people will be preparing for the OMB hearing on the Clock Tower which will be critically influenced, one way or the other, by the Judge's ruling on who owns the land in Market Square.

This glacial timetable works for the lawyers but what about the public interest?

What about the boarded up and decaying heritage buildings in Main Street?

What about the traders and business people who depend upon a lively and busy downtown?

We are all being failed by a creaking system, not fit-for-purpose, where massive delays are par for the course.

We shouldn't accept this with a shrug of the shoulders as being inevitable.

I don't.

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Update 16 November 2017: I asked Esther Armchuk, Newmarket's former Town Solicitor and now Commissioner of Corporate Services, why the Town had sought a postponement. She helpfully told me yesterday:

"The hearing, originally scheduled for today, was adjourned on consent of the lawyers for both parties. Additional time is required to complete the exchange of evidentiary documents, schedule cross examinations on affidavits and argue the matter before Court. The Court had only scheduled 3 hours today for the hearing of this matter, and both parties require more time.

The Newmarket Superior Court has scheduled the matter to be held during the three week long motion/trial session that commences May 14, 2018. At some point during that three week period, the lawyers for the Town and for Main Street Clock Inc. will be given notice by the Superior Court trial office to attend the following day to argue the matter. When that occurs, we will post the hearing date information to the Town's website for the Clock Tower matter. Staff will advise Members of Council and update the website as soon as the new date for this matter has been set."

I am grateful for the explanation but it still doesn't satisfy. Members of the public can expect 24 hours notice of when Newmarket v Main Street Inc is going to come up before a real, live Judge. And why is the whole thing taking so long? Why couldn't the lawyers have sorted out the exchange of evidentiary documents and schedule cross examinations on affidavits by now? They've had months already. I hate to think what the bill will be like when Leo Longo eventually presents it to the Town.


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