Sudbury KED a 'rare' case under old LPAT rules

For two years now, Sudbury's controversial Kingsway Entertainment District (KED) has been held up with legal challenges. 

The proposed casino, arena and event centre complex was planned to be completed in 2020, but appeals are currently still underway. And it's possible the proceedings could go on for some time — with the potential for planning matters to end up before council once again.

The possible outcomes are made a little more complex because of changes in recent years to the Local Planning Appeal Tribunal (LPAT). The KED case is one of few cases in the province being heard under rules that existed only briefly, thanks to a change in government. 

A new tribunal, quickly changed

The LPAT was established in 2018 by the previous Liberal government under Kathleen Wynne, replacing the Ontario Municipal Board (OMB) as the tribunal for reconsidering council decisions. 

The changes came in under Bill 139, which had "the intention of radically changing the way it [the tribunal] made decisions," says Ian Flett, a municipal lawyer in Toronto. 

"Many people were critical of the OMB because one appointed member of the OMB could undo what an entire city council might have decided on its own with its own resources. And people felt that that was, that undermined the democratic voice of municipal residents."

We do not see these types of appeal anymore … it's quite unique.​​​​​​— Ian Flett, lawyer

Some of the key changes included no longer be able to call witnesses during a hearing, as well as a significant change in how decisions were handed down. Under the Liberal rules, if a tribunal member found a municipal decision did not follow all of the relevant planning policies, the matter would be sent back to council for reconsideration. 

But after the Progressive Conservatives came into power in 2018, the government under Premier Doug Ford soon rolled back many of the changes made under the Liberals. That included reinstating witnesses, and giving the power back to tribunal members to make a final decision, rather than sending matter back to council — essentially reverting back to the OMB procedure. 

"It's been very confusing," said Flett, "these changes have almost come at breakneck speeds, because we've ramped up for a whole set of changes under Bill 139, and then we've seen a whole new set of changes only recently in the last year." 

'Rare' case under old rules

While the PCs' new rules are now in place, the KED case is "one of these rare appeals" being heard under the Liberal rules. 

"We do not see these types of appeal anymore. Most of them have kind of worked their way through the system, or gotten abandoned one way or another. So it's quite unique to see one," Flett says.

He explained cases that already had hearing dates set when the new rules came into place were locked in to the previous Bill 139 process. 

Flett says the case will be interesting to watch, particularly if the decision is sent back to council for reconsideration.

"I'm not aware of any cases where that actually happened. So I'd be very curious to see what would come of that." 

A new decision by council would be "newly appealable" — and any appeals would be heard under the new LPAT rules. 

Relationship to Court of Appeal case

While the city waits for the LPAT decision, a recent Superior Court decision in the city's favour is being appealed by anti-casino activist Tom Fortin. 

City solicitor Kelly Gravelle told city council last week that she expected "the Court of Appeal to decision could take upwards of 6 months."

LPAT Vice-chair David Lanthier now has to decide whether or not to reserve his decision until the court of appeals process is complete. He is accepting written arguments from all parties involved until Oct. 19. 

If the Court of Appeal overturns the Superior Court decision, that would quash the bylaws that allowed the development — making the LPAT case irrelevant. But if LPAT rules in the city's favour, that decision could also be appealed, so waiting until after a Court of Appeal decision could mean further delays.  

"It's always a difficult thing when you have different decision makers considering kind of the same matter," Flett said.

"You're trying to make decisions efficiently, and actually you're really trying also not to have decisions conflict with each other."