Details

Written by Gordon Prentice

Published: 18 May 2017

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?

Personal Assurance

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.

Apparently not.

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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.

94.Verbatim Reporters

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.

95.Transcripts

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. 

Details

Written by Gordon Prentice

Published: 16 May 2017

Ira Kagan, the lawyer acting for Clock Tower developer, Bob Forrest, told the OMB prehearing on 3 May 2017 that there was no difference "from the outside" between Forrest's original application and Option B.

Kagan's statement, made without any qualification, was untrue. There are significant differences between the original and Option B. 

Compare the plans for the Market Square side of the proposed development. The plan shown at the top is from the original application. The plan below is from Option B.

Forrest's original application (resubmitted in April 2016) was for a seven storey building with 165 apartments and 199 parking spaces with underground parking extending under Town-owned land.

Option B which was sprung on everyone on the day of the OMB prehearing proposed 143 rental units and 177 parking spaces - all on Forrest's own land. (The Town's counsel, Leo Longo, was told about Option B on Monday evening, 1st May 2017 - less than 48 hours before the prehearing.) Forrest now intends to build entirely within his property line. 

At the prehearing I was given a sheaf of drawings for the new Option B but one key elevation was missing. The view of the Clock Tower development from Market Square. Yesterday, I emailed Kagan with the question:

"There was no artist's impression or elevation for the proposed development as seen from Market Square. Is this available?"

He replied:

"No. I gave you all that was available."

When Kagan assured the OMB adjudicator, Blair Taylor, that even with the loss of the Town-owned land required for the underground car park, the development looked the same from the outside, he must have been relying on information from his client, Bob Forrest. I am certain Kagan would never knowingly mislead the OMB. 

Why is this important?

Bizarrely, the OMB has two applications before it. The original application which is under appeal and Option B which is being sold as a minor variation of the original. This strains our credulity.

If Option B is an entirely different beast from the original - and it is - then the OMB should not even consider it. It should instead adjudicate on the original which everyone now knows cannot be built. If the OMB presses ahead with a series of Hearings on a building that cannot be built then, truly, we have entered Fantasyland.

Delicious irony 

In a delicious irony, and to the best of my knowledge, we do not have a transcript or an audio recording of the OMB prehearing on 3 May 2017 but perhaps Mr Kagan can tell us what he said or what he meant to say if he "mis-spoke". The Council Chamber was packed and I am prepared to bet people heard what I heard.

My hunch is the revised Clock Tower is still work in progress. If it is not then Forrest should make all the plans, drawings and supporting statements available to the Clock Tower Parties immediately. And he should brief his counsel, Ira Kagan, comprehensively and honestly, holding nothing back.

In the meantime, the Town should formally request the OMB to dismiss Forrest's appeal without a hearing.

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On 28 November 2016, after the Committee took its decision to deny the Clock Tower application, Bob Forrest told councillors:

"We have informally shared with Planning Staff that we have found the means to re-design the underground so that it does not extend under the Newmarket Library parking. This revised configuration, which was accomplished as to reduce our construction impact upon Library operations, is to be presented as part of a Site Plan Application."

Earlier today, I wrote to the Town to ask for sight of any elevations or artist's renditions of the revised Clock Tower development (as referred to above) as seen from Market Square.

Details

Written by Gordon Prentice

Published: 16 May 2017

Big changes are coming to the land use planning appeal system.

The Government announced this morning that the OMB is to be abolished. A new Local Planning Appeal Tribunal will replace it giving "greater weight to the decisions of local communities".

Significantly, the Province will set up a Local Planning Appeal Support Centre

"mandated to provide free and independent advice and representation to Ontarians on land use planning appeals".

This will make a huge difference. At the moment the system is infested with lawyers, bogus experts and special interests with lay people frozen out and silenced - unless they can raise thousands of dollars to hire their own lawyers and planners.

The front page story in this morning's Toronto Star highlights the OMB's failings.

The whole system is totally broken.

Today's news is very good news indeed. It has been a long time coming.

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Details

Written by Gordon Prentice

Published: 15 May 2017

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.

Total Recall

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.

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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.

Gordon Prentice