Details

Written by Gordon Prentice

Published: 06 January 2014

On 13 January 2014, at Newmarket‘s Committee of the Whole, councillors will decide whether or not to enter into mediation with the rapacious Marianneville Developers who want to build 730 new dwellings in the heart of the Glenway neighbourhood.

The hearing proper will be in two phases. The first is scheduled to begin at 10am on 17 March 2014 in the Ontario Room at the Best Western Voyageur Place Hotel in Newmarket and will consider whether any development at all should be permitted. The second follow-on hearing will look at the details of the proposed development of Glenway.

At the pre-hearing conference on 10 December 2013, the OMB adjudicator, Jason Chee-Hing, said:

 “The Board strongly encourages the Parties to consider mediation to potentially resolve some or all of the issues.”

The Delphic Chee-Hing, unfortunately, gives no indication of what was in his mind when he said this. Is he asking councillors – who have only recently voted unanimously against any development at Glenway - to set this to one side and to start thinking about what, in extremis, might, just possibly, be acceptable?

Is the OMB Adjudicator seriously expecting councillors, in advance of Phase 1, to give direction to staff on Phase 2 issues? Council staff will be doing the mediating but they will need to know the parameters within which they are operating. They need to be told how far they can go in trying to reach a settlement with Marianneville (which would, of course, need to be ratified subsequently by councillors).

Details of the Council’s negotiating and fall-back positions could even leak into the Twitterverse.

Mr Chee-Hing is also coy about whether he would rule on the principle of development after hearing the arguments on Phase 1.

“The Board, at its sole discretion, may issue a decision following the completion of Phase 1 or proceed to hear both Phases before making a decision in these matters.”

This is an absurd way to proceed.

Mr Chee-Hing should have made it clear that he will issue his ruling after Phase 1. At that stage, if he decides that some or all of the proposed development should be allowed, he can then invite the Parties to enter mediation.

There is simply no point asking the Town and the Glenway Preservation Association to sit down with Marianneville. They are poles apart.

If the Town and GPA make concessions and move away from their principled “no development” position, even marginally, the whole Glenway coalition, painstakingly built up over the last two years, will fall apart.

The OMB is wedded to mediation as a way of getting parties to settle, often by splitting the difference. But, sometimes, it doesn’t work.

“If mediation does not resolve the issue, then the OMB will schedule a public hearing. Similar to a Court proceeding, an OMB hearing requires that parties must swear to tell the truth. A different member than the one who guided the mediation will be assigned to hear the matter. Nothing relating to the mediation, except those matters that have been agreed to, can be revealed to the Board Member presiding at the hearing.”

Mediation suits the developers. They want to know how many sweeteners they need to offer in order to win councillors over to their pro development position.

If one breaks ranks (and the rabidly pro development Maddie Di Muccio is, surely, a likely candidate), others may follow.

There is absolutely no point in the Town or Glenway showing their hand to the developers at this stage. Instead, they should formally advise the OMB that mediation is something that should only be contemplated after Phase 1 has been decided.

And, in the absence of further elucidation from Mr Chee-Hing on what he meant when he “strongly encouraged” the parties to enter mediation, I would ask the OMB for a new adjudicator to preside over the main hearing.

It seems to me that Jason Chee-Hing has already made his mind up. 

 MEMORANDUM OF ORAL DECISION DELIVERED BY JASON CHEE-HING ON DECEMBER 10, 2013 AND ORDER OF THE BOARD

[1]            At this pre-hearing conference (“PHC”), the Board dealt with a motion brought by the Town of Newmarket (“Town”) for the adjournment of the hearing and to phase the hearing.  The hearing of these consolidated appeals had already been set down for March 3, 2014 for approximately eight weeks.

[2]            Specifically, the motion sought a Board Order to:

a.       Phase the hearing into the following phases:

I.    Phase 1 – Principle of Development

II.  Phase 2 – Details of Development

b.       Adjourn the commencement of Phase 1 for five weeks and amend the Procedural Order (“PO”) to make appropriate changes to the exchange dates.

c.       Alternatively, an Order of the Board to adjourn the commencement of the hearing to June 2014 and amend the PO to make the appropriate changes to the exchange dates (Exhibit 1).

[3]            The Glenway Preservation Association (“GPA”) supported the Town’s motion. The Region of York took no position. Marianneville Developments Limited (“Proponent”) was opposed to the motion. The proponent summonsed Ruth Victor who is the Town’s external planning consultant. Motion and response to motion filings were received by the Board.

[4]            The Board, after considerable arguments put forth by the Town and the Proponent, ruled that the Proponent’s “without prejudice” settlement offers and settlement discussions detailed in its motion filings were admissible in these proceedings as these settlement offers were discussed publicly by Town staff. The Town chose to put in the public domain its analysis of the settlement offers. The Town’s position was that these settlement offers were subject to settlement privilege as they were made “without prejudice” by the Proponent and as such should be inadmissible. In the Board’s view, the settlement offers and discussions were clearly in the public domain and did not meet the tests of settlement privilege discussions.

[5]            After much debate and following the testimony of Ms. Victor, the Parties eventually reached a resolution on the Town’s motion. There will be two Phases to the hearing within the ambit of one hearing. The appeals remain consolidated. The hearing will commence on March 17, 2014 at 10 a.m. and will be for approximately six weeks. The overall hearing length has been reduced by two weeks. The issues list for Phase 1 has been revised. The timelines for the exchange of witness lists, witness statements and responding witness statements are detailed in Exhibit 6. The Parties will modify the PO in accordance with the agreement and submit to the Board forthwith.

[6]            The Board, at its sole discretion, may issue a decision following the completion of Phase 1 or proceed to hear both Phases before making a decision in these matters.

[7]            Lastly, the York Region District School Board (“YRDSB”) requested and the Board granted party status in these matters. The YRDSB had, at a previous PHC, requested Participant status. The YRDSB proposes to locate an elementary school within the subject lands.

ORDER

[8]            The Board orders that the Town’s motion is granted in part and the hearing start date and the PO are amended in accordance with the resolution found in Exhibit 6 and provided as Attachment 1.

[9]            No further notice is required. This panel of the Board will continue with the case management of these matters but is not seized of the main hearing.

[10]        The venue for the hearing remains the same.

[11]        The Board strongly encourages the Parties to consider mediation to potentially resolve some or all of the issues.

“Jason Chee-Hing”

JASON CHEE-HING

MEMBER

Details

Written by Gordon Prentice

Published: 23 December 2013

Has Slessor Square been sold?

On 25 October 2013 I was told by Newmarket planning staff that:

“Bob Forrest, the proponent of the Slessor Square Development has informed staff this week that his team has conditionally sold their site. We understand the sale is conditional for 60 days.”

If the site was sold conditionally on Friday 25 October 2013 and Bob Forrest told the Town on the same day, we are now on day 59.

There could of course still be an offer and acceptance between the buyer and the seller. But the sale only goes through when it is officially registered with the Province’s Land Registry. And that hasn’t happened yet.

The Land Registry record shows that Dwight Slessor Holdings Limited owned the former car dealership site. On 6 December 2011, PACE Savings and Credit Union paid the Slessors $4,500,000. A second payment was made by PACE to the Slessors on 22 January 2013, this time for $1,800,000. There are now, in consequence, charges on the property totalling $6,300,000, a tidy little sum.

The billboard on the Slessor Square site declares that financing for the development is provided by PACE Credit Union.

If the sale does go through – or even if it doesn’t - the Slessors will be walking away, laden down with sacks of cash.

In February of this year the OMB gave the OK to Dwight Slessor Holdings to erect twin towers at 21 and 19 storeys and two other buildings at 8 storeys.

Unfortunately, Newmarket councillors capitulated at the first whiff of grapeshot and accepted the Slessors “settlement offer”, avoiding the need for a long drawn out OMB inquiry.

Our councillors gave “approval in principle” but with a huge number of key issues left unresolved. These are known as “holds” which must be lifted by the Town before the development can get started.

Last month, with no signs of anything much happening, the OMB requested an update. (Earlier, on 8 July 2013 the OMB reminded the Slessors’ lawyer, Ira Kagan, that the OMB had withheld its final order on the draft plan of subdivision until it received the conditions of draft plan approval.)

On 13 November 2013, the OMB asked Kagan

Can you please provide a status update with respect to the conditions of draft plan approval? 

On 14 November, Kagan, replied:

My client is still working with Town and Regional staff to come to agreement on the conditions of draft plan approval.  If we are unable to do so then we will request that the Board hold a hearing to deal with the conditions. 

And, without a hint of irony, Kagan continued:

We are hopeful that this can be avoided as we appreciate how busy the Board is these days.   Thank you.

The OMB has now told Kagan it expects a “further status update” on 24 March 2014.

This, as it happens, is in the middle of Phase 1 of the OMB’s Glenway Hearing where the ubiquitous Mr Kagan, wearing yet another hat, will be appearing on behalf of Marianneville, the hard-nosed developers who plan to rip the heart out of the Glenway community.

Details

Written by Gordon Prentice

Published: 20 December 2013

Now that Maddie Di Muccio will be losing one month’s salary, deducted in instalments until September 2014, for branding the Mayor “a misogynist” she tells the Era Banner she’s ready to move forward and will continue to work with professionalism.

My first reaction is a wry smile. But now, as I tap this out, I am laughing out loud (LOL).

To understand the pathology of Maddie Di Muccio it is necessary to enter her Twitterverse. Her daily torrent of tweets provides an insight into what she is really thinking.

Amongst the garbage there are some real gems. She tells the Era Banner she wants to move forward but in the very next breath calls on her 2,476 followers to help her get rid of all her Councillor colleagues in next year’s elections.

Help me boot all 8 of these members from office next year. Help me recruit good people. #Newmarket

2:11pm - 18 Dec 13

She says she is disgusted with all of them.

On the other hand, I'm so disgusted with the representation we have on #Newmarket Council, that I want to change it.

8:59am - 18 Dec 13

She singles out two in particular.

Cllrs @JaneTwinney & @_JohnTaylor insist I "yell, threaten, run around, and scream." That sounds almost as ludicrous as their voting records

11:09pm - 17 Dec 13

And goes on to patronize the only other woman on Newmarket Council

It was rich listening to cllr @JaneTwinney complain about my tweets in council tonight. Poor Jane. A victim of scrutiny and social media.

12:02am - 17 Dec 13

Di Muccio complains she is being pilloried because she stands up to them all.

@TicknerSafety @SuncoastPlace @horsesandbeer no other council has done this. Using me as example to anyone else who challenges their record.

11:59am - 20 Dec 13

Bizarrely, Di Muccio warns candidates for election to Council in 2014 that if they challenge the Mayor and his inner circle they too will be punished.

b/c they didn't like my use of social media. They wanted to send out a msg to new candidates: should u dare challenge them, u'll be punished

2:11pm - 18 Dec 13

She claims the Mayor was never interested in an apology. That will be news to many people, including, presumably, the Mayor.

@wickedrpn removing someone's pay is a personal, vindictive & punitive tactic. The mayor was never interested in an apology. That much clear

10:06pm - 16 Dec 13

Now she issues a veiled threat to her Councillor colleagues. They deserve what’s coming.

@SuncoastPlace thanks Mark. They're fully deserving of what's coming to them. Right as we start an election year. Time to end the charade.

10:22am - 20 Dec 13

And, as professional as ever, she dubs them all “fools”.

@TicknerSafety @SuncoastPlace @horsesandbeer these fools create their own laws as they go along. Its a disgrace to democracy.

12:10pm - 20 Dec 13

The delusional Di Muccio falsely claims she was not allowed to speak in her own defence.

@TashaKheiriddin thanks Tasha. It was the worst example of a kangaroo court. I wasn't even allowed to speak in my own defense.

2:20pm - 18 Dec 13

Now she claims she was put in an impossible position, being asked to think on her feet and “apologise on the spot”. Apparently, she needed a lawyer to advise her how to say sorry and to retract, without qualification, her use of the word misogynist to describe the Mayor.

@BCLibFan @Era_Reporter well written. As for 10 min option to write an apology on the spot: I was refused courtesy of legal representation.

4:06pm - 17 Dec 13

Di Muccio, who has alienated every single one of her councillor colleagues, says she is made stronger by these events.

Do you think, @TonyVanBynen and @_JohnTaylor, that your tactics wear me down? They make me stronger. You *still* don't get it. #Newmarket

10:14pm - 16 Dec 13

But she can’t do it all on her own. She needs the lawyers to provide back up. (LOL)

@TicknerSafety @SuncoastPlace @horsesandbeer thanks Roger. I'm meeting with my legal next week. I'll keep you posted. You're amazing.

11:54am - 20 Dec 13

We are told the Upper Canada Law Society is also involved. We should all “stay tuned”.

@TicknerSafety @SuncoastPlace @horsesandbeer we've already had a conversation w the Upper Canada Law Society. Stay tuned.

12:12pm - 20 Dec 13

Di Muccio loves attention and being noticed. Her narcissism is self evident.

@SuncoastPlace @horsesandbeer I'm in the local paper again today. And the calls of support keep coming in - once again. #overwhelmed

11:49am - 20 Dec 13

And we can all look forward to her new website: Maddie works for me for free.

@RockNRollCroll absolutely. maddieworks4me4free.ca. About to be launched.

6:29pm - 17 Dec 13

Now I am laughing out loud again.

Details

Written by Gordon Prentice

Published: 17 December 2013

Yesterday (16 December 2013) Newmarket’s Committee of the Whole decided to postpone until January any decision on whether or not to engage in mediation on the future of the Glenway lands.

This was the right thing to do.

At the end of the pre hearing on 10 December, the OMB adjudicator, Jason Chee-Hing, strongly recommended all parties consider mediation before the hearing proper starts in March.

He indicated that, having read all the papers and listened to the submissions, the parties should seriously think about mediation – about what precisely he did not specify. What was in his mind when he said this?

Perhaps by January we shall have a written note from Chee-Hing setting out his formal decisions together with his reasoning. We need to understand where he is coming from.

The OMB is not a Court of Law but the impact of its ruling can be just as far reaching in its own way as a decision handed down by judges.

That is why he is under an obligation to explain his reasoning.

The first part of the Glenway Hearing starting on 17 March 2014 will examine the so-called “principle of development”. This will settle the main question: Should any development be allowed on the Glenway lands? How on earth is it possible to mediate on a question that is, in Chris Emanuel’s words yesterday, so black and white?

The first thing to make clear to Mr Chee-Hing is that Ruth Victor does not speak for the Town.

True, she was engaged by the Town to work on the Glenway file and she has written reports and expressed her “planning point of view”. But it is just that. Her view. Not the Town’s.

Victor’s recommendation at the Glenway meeting in Newmarket Theatre on 25 November 2013 to keep talking to Marianneville was rejected unanimously. 

Yesterday, ward 7 councillor, Chris Emanuel, told the Committee of the Whole that everyone needed more time, including the Glenway Preservation Association who will be bringing a deputation to Council.

The Town’s solicitor, Esther Armchuk, told councillors mediation is entirely voluntary and that, crucially, all parties would have to agree to participate and be clear on the issues they want to mediate. In a further twist, parties might agree to mediation but choose not to take part, reserving their decision on what eventually comes out of the sausage machine.

We learn that the OMB has mediators available as we speak.

We are told that all discussions in mediation process are confidential and cannot subsequently be used at the OMB. Councillors would not be present but would delegate authority to staff who would engage in mediation following a brief given to them beforehand by the Town. She said staff would be looking for authority in advance of mediation setting out how far they could go. Staff would then bring a mediated settlement back to Council for ratification.

Personally, I think mediation is a complete waste of everyone’s time. Every ounce of energy should be directed at establishing the GPA’s position – which is now also the Town’s – that the Glenway lands should not be developed. Anything else is, for the moment, a complete distraction.

Councillors have a few questions about process.

Now they are discussing whether the January discussion should take place just at Council or also at the Committee of the Whole.

John Taylor memorably says “two thought points” might be better.

Seems to me a second "thought point" is OK. So long as there are no second thoughts.

The Town must stick to Glenway like glue.