The Slessor Residents’ Group has decided not to ask for “Party” status at the pre hearing on Friday 30 November.

This is a big mistake.

A leading light in the five strong residents’ group, Bob Bahlieda, knows the Slessor application inside out.  His forensic skills can lay bare inconsistencies and errors in the most densely argued case.

Other members of the group bring with them detailed knowledge of the Slessor application in all its forms, as it has mutated over the months.

The Town’s Planning Department has consulted the group from the outset, believing it represents the views of residents. And tri-partite meetings have been held with the developers so the group knows the nuts and bolts of the application in a way that no-one else does.

Given all this, it seems to me inconceivable that the OMB Adjudicator would refuse a request from the Slessor Residents’ Group for Party status.

I can’t see the Town of Newmarket objecting.

The developers, quite possibly.

They want to convince us that their sky high development is just the tonic that Newmarket needs.

But, ultimately, the decision will be for the OMB panel member adjudicating.

The Slessor Residents’ Group say they are content with Participant status. Their lead spokesperson, Anna O’Rourke, explains:

(1)         There is little to be gained by our group (in going for Party status). Party status requires full time commitment to attend and participate in the hearings which could last up to four weeks.

(2)         We also have few witnesses to call and cross-examination would only rehash the same disagreements we have had with the project already and allow them to attack them through cross-examination.

(3)         We also have no legal standing at the OMB but must use our moral arguments to oppose the project. Party status leaves us open to having our position undermined. Expert witnesses at the hearing will be prepped by their legal team. We have no expertise in being witnesses.

(4)         In contrast, the role of participant allows us to fully present our case while not having the OMB distracted by cross examination or by throwing us off our message. We will still make all the same points as we would being a party but without the distraction of cross examination and the potential that we say something that will prejudice our case. Given our limited resources the role of participant is a more preferred strategy that lets us control our message.

The Slessor Residents’ Group don’t need to pretend to be something they are not. They are not Bay Street lawyers or planning professionals. They are concerned citizens. No more and no less. And they don’t need to be frightened of their own shadow.

As Participants, they will get one kick at the ball and then they are off the field and are spectators again. Those with Party status are key players throughout.

I hope it is not too late for the group to reconsider.

So what are the pros and cons of going for Party status?


(1)         The Group would be giving voice to a large number of local people who object strongly to the Slessor development. There is no other group that purports to represent the views of local people on the Slessor development.

(2)         It doesn’t cost anything to become a party – other than in terms of time. (And, yes, that is a big deal.)

(3)         Parties do not need to be “experts” or be legally represented. They just need to be able to speak on their own behalf and present their evidence to the hearing. In the pool of 23 OMB adjudicators there are “lawyers, former elected officials, engineers, surveyors, planners and public administrators.”

(4)         Parties can cross examine if they choose. In the course of the OMB hearing, the developers may make statements that cry out to be challenged.

(5)         Crucially, Parties can ask the OMB to help broker an agreement. The OMB says it may try to settle disputes or reduce the number of issues at a hearing by bringing parties together informally through mediation. Those with participant status are expressly excluded from the process. The Slessor Residents' Group would be in on any mediation talks.


(1)         There would be a major investment in time, not necessarily money. There would be modest photocopying costs and so on.

(2)         The bona fides of the Slessor Residents’ Group could be challenged. Are the spokespeople elected or self appointed? Is there a membership? And do they meet and vote on positions?

(3)         It is too big a burden for a single individual to be expected to carry.

(4)         Anything that needs to be said at the hearing can be said as a participant.

(5)         Being cross examined by smart silver tongued lawyers wouldn’t be much fun and the Group might look foolish or unprepared, or both.

An unincorporated body such as the Slessor Residents’ Group has a major hurdle to overcome (point 3 above) when going for Party status.

The OMB rules say “if an unincorporated group wishes to become a party, the group must appoint one person to speak for it. The person appointed must accept the responsibilities of a party.”

That means being present throughout the OMB hearing. And that’s a big commitment.

One way around this is for a community/residents group to become incorporated. There are special rules for non profit organisations and incorporation can be quick and relatively straightforward. And it doesn’t cost much.

This is what the Glenway Preservation Association has done. 

The Glenway people say incorporation ensures “appropriate governance and accountability”.

Maybe the Slessor Residents’ Group should take steps to become incorporated. If it's not too late.

I’d vote for that. 


The OMB guide explains how the system works:

“Parties take part in the hearing by exchanging documents, presenting evidence, questioning witnesses and making submissions to the Board. Parties may also request costs, adjournments or a review of the decision.”

How to become a Party

(1)         Submit your request in writing to the Board, and provide a copy of your request to the other parties

(2)         Be at the first day of hearings, at the start time. If you are not there you may be denied party status.

(3)         At the beginning of the hearing, the Board member asks if anyone wishes to become a party to the matter. You may stand up and ask to be added as a party.

(4)         Give the Board member your name and address for the record.

(5)         Explain why you wish to be added as a party. After explaining your position, the Member will ask if any of the other parties object to to you being added.

(6)         The other parties may agree or disagree to adding you as a party.

(7)         The Board Member decides if you will be added as a party.

A Participant is a person or organisation that participates by making a statement to the Board on some or all of the issues at a hearing. A participant may attend all or only part of the proceedings. Participants are not required to make submissions to council before becoming involved in an OMB matter.

When making a statement to the Board, participants must swear to tell the truth. They may be questioned by the Board and other parties. Participants generally do not question witnesses and cannot ask for costs, adjournments or request a review of the decision.

How to become a participant:

(1)         Be at the first day of the hearing, at the start time. If you are not there you may be denied participant status.

(2)         At the beginning of the hearing, the Board Member asks if anyone wishes to become a party or a participant. At that time you may stand up and ask to be a participant.

(3)         Give the Board Member your name and address for the record.

The Member will set aside time during the hearing for participant statements. Usually statements are scheduled at the end of a hearing. During a longer hearing, the Board may set a different time for participant statements so participants do not have to sit through the entire hearing.

Click on this link  to access the OMB’s website. 

· (“Frequently Asked Questions”)

· (“Guide to the Ontario Municipal Board”)

· (“Information Sheets”)

The Slessors will meet their match at the OMB pre hearing on 30 November if the Slessor Residents’ Group goes for, and wins, equal status as Party to the action.

The Parties will include the developers, the Town of Newmarket and, very probably, York Region. There may be others.

I know all this stuff because I went down to the OMB HQ in Toronto, said hello and asked a zillion questions.

But to continue….

“Participants” will include those who have previously formally given the Town their views on the Slessor proposal.

“Parties” can call witnesses and cross examine other parties (and be cross examined themselves). What fun!

Participants, on the other hand, read out their submissions at the end of the day, once the press and public have gone. And they cannot quiz the parties or call witnesses.

It is a matter for the OMB adjudicator to decide who should be given party status but, surely, the Residents’ Group must stake a claim.

And why not?

The Group has lived and breathed Slessor Square for over a year and has a good understanding of the issues. They will bring a local perspective and commonsense, qualities that are sometimes missing in the Town’s approach.

To recap. The Slessors are appealing to the OMB in the hope that their monster twin tower development opposite Upper Canada Mall will be approved.

The Slessors say they are going down this road because the Town of Newmarket didn’t make a decision on their application within the time period specified in the legislation – 180 days.

In fact, their original application, the one now before the OMB, was never, at any stage, put before elected officials - either to accept or reject.

The original application included an hotel with 152 suites. The Cole Traffic Study of June 2011 specifically mentions the hotel.

But by the time councillors first considered the Slessor application on 21 November 2011 the hotel component had mysteriously vanished.

This is the whacky world of urban planning in Ontario.

Who knows what discussions took place between the Town’s planners and the developers from the time the original application was lodged and the November 2011 meeting?

But I am pretty sure Newmarket’s planners would have been trying their level best to modify the design into a form that the Slessors and the Town could both live with.

That was always a long shot given the huge scale of the Slessor development but planners would have given it their best shot.

They would have been working for a win-win.

But with Slessor’s appeal to the OMB all bets are now off.

The Town has no option but to come out fighting.

The Slessor appeal to the OMB kicks off next Friday (30 November) and, this afternoon, Newmarket’s councillors meet to decide their approach.

But first, why is the Slessor development so important?

Answer: It is the first of the really big developments that will shape and dominate the Town’s skyline for a generation. Slessors want to press ahead with their original proposal for twin towers of 26 and 29 storeys, an hotel and conference centre and a truly cavernous underground car park for over 1,300 vehicles.

If the twin towers ever get built they will have another high rise near neighbour. Planning permission for a 20 storey condo at the junction of Davis and George was sneaked through a few years ago when no-one was looking. The decision got no publicity and no questions were asked. Construction has yet to start.

Today’s Committee of the Whole concentrated almost exclusively on the cost of getting involved in Slessor’s OMB appeal.

Cllr Dave Kerwin wanted to know if the pre-hearing would be dealt with exclusively by Town staff. He was fearful that going to the OMB would cost an arm and a leg.

Councillor Maddie Di Muccio who is notoriously pro development, regardless of the consequences for local people, cautions against giving staff a blank cheque.

She tells her colleagues that the staff should not be able to authorise bringing in outside legal and planning experts without the specific prior approval of Council.

At an earlier meeting of the Committee of the Whole in October, Maddie ominously tells her council colleagues that

new developments are going to take residents out of their comfort zone

Sounds like she’s telling local people they will just have to get used to disruption, construction noise, dust and all the rest. And, at the end of the day, be saddled with an eyesore.

Anyway… We learn that a full OMB hearing is unlikely before Spring 2013 and that by early February Planning Staff will be in a position to bring their recommendations forward. A specific Council direction would be required to go to a full hearing of the Slessor appeal.

Now it is Tom Hempen taking the floor. He wants to know where things stand on the key issues of height, density and traffic.

We hear the planners have not agreed with the developers the methodology to be used for assessing density.

It is getting a tad technical but the bottom line is this.

Density, as proposed by the Slessors, is still significantly higher than the high end scenarios set out in the Town’s evolving Secondary Plan.

The senior planner in charge of the Slessor file, Marion Plaunt, tells Tom the Slessors have come up with a FSI of 3.8 and that the Planning Alliance (hired by the Town) is looking at how this fits in with the emerging outlines of the secondary plan.

Tom emphasises again that density is still very high.

Now it is the turn of Regional Councillor John Taylor who echoes Tom’s concerns about density. And traffic too.  John says the development would be in one of the most congested areas of our town.

Like Dave Kerwin and Maddie Di Muccio, he is concerned about giving blanket approval to staff to incur costs at the OMB. He wants to know the scope of the appeal, the risks involved, the chances of success – as well as the potential costs.

Seems to me he has hit the nail on the head here.

As the Council prepares for the OMB pre hearing on 30 November, it will have to address the simple, straightforward question of why it failed to amend the zoning by law within the prescribed 120 days, as requested by the Slessors, and, secondly, while the Town failed to come to a decision within 180 days.

The answer is blindingly obvious.

The Slessor application was complex. It raised a thousand issues which the Town and the Region had to address and it was simply not possible to come to a decision within the time period without cutting corners.

Now Rob Prentice, the Commissioner for Community Services, is warning that outside experts need to be lined up well in advance. They can’t be hired late in the day and brought up to speed at the drop of a hat.

Jane Twinney, who rarely says much, pronounces that she is not “comfortable” (a favourite word at Mulock Drive) with giving staff open ended authorisation to commit funds to prepare for the OMB hearing.

Keeper of the Purse Strings, Dave Kerwin, memorably warns that 

“2013 could be pungent with legal litigation”

He wants to know how much the Town has earmarked for outside experts. The Director of Legal Services, Esther Armchuk-Ball, tells him there is a reserve.


This doesn’t satisfy Maddie who says councillors shouldn’t authorise staff to retain outside legal and planning consultants when they, the councillors, didn’t know the staff recommendation for the Slessor appeal or, indeed, the legal ins-and-outs. (Both true)

Chris Emanuel innocently asks for information on the time between the pre-hearing (30 November) and the full hearing (if it goes there).

We learn that staff expect a full hearing in the Spring.

So why can’t staff update Councillors after the pre hearing on 30 November when things are clearer? Coucillors need an understanding of what is involved if the appeal goes to a full hearing.

Now it is back to Esther, the Director of Legal Services, who reveals that a full hearing could take three to four weeks and that retaining professional help and getting potential witnesses (to back the council’s position) could not be left to the last moment.

She tells councillors a lot of discussions may have to take place well in advance of the full hearing and not having outside planning help “may be limiting”.

The Mayor, Tony Van Bynen, steps in with a good question.

If we are to go to a full hearing of the OMB should we engage people for the pre-hearing on 30 November?

Esther, the Town's top legal eagle, says that in an ideal world it would be better to engage people as soon as possible but it probably wouldn’t harm the Town’s position if we got people afterwards and brought them up to speed.

John Taylor returns to the money theme asking for a rough estimate of the cost of going to the OMB.

Chris Emanuel thinks it may cost an eyewatering $100,000 per week.

The Legal Services Director says she is more Conservative, estimating the cost at around $50,000 - $100,000 per week. Still enough to make you mop your brow.

Marion Plaunt winds up by saying Planning Staff have been proceeding “fairly cautiously” on the Slessor file since the developers lodged their appeal with the OMB. There are many areas where no agreement has been reached and these are set out in attachment 6 of the committee report.

By now, there is a feeling that the councillors have squeezed the orange dry and it is agreed to return to the issue at the first opportunity following the OMB pre hearing on 30 November.

This probably means a report to the Committee of the Whole meeting on 3 December. It is scheduled for a Budget discussion but Slessor could be taken.

By then, the Council needs to get its act together and settle on its approach to the twin towers development.

Councillors must realise it is not just about the cost of resisting the Slessor appeal to the OMB.

It is about creating the kind of Town we all want to live in.

A town shaped by the people who live here and not by profit hungry developers.

Key decisions on the Town’s approach to the proposed monster development at Slessor Square will be taken on Monday 19 November 2012 at the Committee of the Whole (Council).

You can read the staff report here. Go to the CotW agenda for 19 November and scroll to agenda item 13.

The Slessors are appealing to the OMB on the grounds that the Town failed to amend its zoning by law, as requested by the developer, within 120 days of the application being filed and, moreover, the Town failed to make a decision within 180 days.

Personally, I think that’s rather impertinent.

The Slessor development has taken many forms over the months and, even now, there is a further proposal shown in the Committee Agenda which tries to address some of the many criticisms of the original scheme.

However, it is the original and very imperfect development proposal of June 2011, subsequently amended in September 2011, that will go before the OMB at the pre-hearing on Friday 30 November 2012. This meeting will be held at 10.30am in the Cane Room A & B at 395 Mulock Drive. It is open to the public.

To be clear, the original proposal and the latest incarnation are both unacceptable. They represent a gross over development of a very tight site of 4.6 acres. The developers are simply trying to squeeze a quart into a pint pot.

The original proposal contained an hotel – abandoned by the developers many months ago – but, in a weird kind of time warp, it is now back in the frame as a result of Slessor’s decison to appeal to the OMB.

We are told the Town’s planners are still in discussions with the developers but it is clear much remains unresolved.

Attachment 6 on page 13.22 of the Committee of the Whole agenda summarises the issues and the progress made in resolving differences between developer and Town.

Traffic impacts and parking are still subject to review. Ditto height and density.

The shadow studies and the viewshed analysis are, we are told, to go to residents for comment.

It seems to me there is a huge and unbridgeable gulf between what the Town wants and what the developer is insisting upon.  Let’s remind ourselves; the developers’ original proposal envisaged 832 people and jobs per hectare. The official plan stipulates a minimum of 200 by 2031 or earlier.

At the OMB on 30 November, the Town must face down the Slessors and support the people of Newmarket who do not want to see the centre of their town ruined forever by rapacious and intransigent developers determined to force their eyesore on the rest of us.

The Committee of the Whole meets at 1.30pm on 19 November 2012 in the Council Chamber at the Municipal Offices at 395 Mulock Drive. The meeting is open to the public.

Slessor’s traffic consultants, Cole Engineering, have delivered a report designed to bring a smile to the developer’s face.

They say in the summary

the proposed development is expected to operate generally within the available roadway capacity with some localized intersection movements operating at or near capacity.


The report later predicts that a long list of major intersections within the study (secondary plan) area are likely to be operating at or over capacity in 2021 during all analyzed peak periods.

By 2021 they say potential developments in the Secondary Plan area will generate hundreds of additional vehicle movements every day – for example, 772 two way trips in the Saturday peak hour. Slightly fewer for weekday peaks.

The consultants have some ideas to keep the traffic moving. George Street could get collector status and become a four lane road, up from two.

North bound traffic on George Street would have to turn west on to Yonge, rather than east into the residential neighbourhood.

The traffic engineers make a lot of assumptions using their “engineering judgement”. This is consultant-speak for reading the tea leaves.

They predict the roads are not going to clog up and become gridlocked because they expect 15% of people (rising to 25%) to get about using non-auto options – walking, cycling, transit and so on.

Fair enough. I am all in favour of encouraging people to leave their cars at home and use alternative modes of transport. The big question is how to do it. The consultants say developers could hand out free bus passes. Hmmmm.

Certainly, making bus travel cheap is one option. (After the recent transit dispute, bus travel was free for a month or so and ridership leapt 10%)

The consultants refer to current Town car parking standards as one parking space per apartment. The original report from the Town’s planners a year ago gives 1.5 spaces for every so called “adult lifestyle unit”. Slessors, I recall, wanted to increase that to 2 spaces.

If the Town has since reduced its parking standards for monster condominiums – and it looks like it has - that’s good.

With only a few weeks to go before the Slessors take their case to the OMB, there are still a lot of ifs and buts.

By 2026, the planners want the Yonge Street – Upper Canada Mall intersection to lose its traffic lights following the construction of a proposed new street “B” that would provide a new access to Upper Canada Mall.

The signalized intersection that is currently operating gives access to the Slessor site and the consultant tells us the owner does not agree with or consent to the existing traffic signal being removed.

Clearly, the Slessors believe that traffic signals at the intersection are crucially important for the success of their development and they are not going to give them up without a fight.

I don’t know how this will play out.

So, where does this leave us?

The consultants predict the Slessor development and all the others in the pipeline, will generate extra traffic (they could hardly suggest otherwise) but, with a tweak here and a new road there, the system will cope.

Not sure it is quite that simple. You can read the traffic study here. Scroll to Updated Traffic Impact and Parking Study 18 October 2012.

The Appendices, containing important information, are missing from the downloaded report. (or were)