- Written by Gordon Prentice
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
 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.
 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).
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 The venue for the hearing remains the same.
 The Board strongly encourages the Parties to consider mediation to potentially resolve some or all of the issues.
- Written by Gordon Prentice
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.
- Written by Gordon Prentice
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.
- Written by Gordon Prentice
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.
- Written by Gordon Prentice
On Tuesday (10 December), at the OMB pre-hearing on Glenway, the adjudicator Jason Chee-Hing gave the Glenway Preservation Association what it most wanted. A stand alone debate - and decision - on whether there should be any development at all.
The hearing proper – as opposed to this week’s pre-hearing which looked at timetabling and the modalities - will be split into two parts.
The first will open on 17 March and run for two weeks and will consider the so-called “principle of development”. This will decide whether any development is permissible at all. (See Issues List below). Then, if development is given the go-ahead, the follow on part, starting on 31 March, will look at all the technical aspects of shoehorning 730 dwellings into the middle of a quiet, stable residential neighbourhood. It is scheduled to run for four weeks.
The 8 week hearing has miraculously already shrunk to 6 weeks and we are barely off the starting blocks.
The OMB pre-hearing in the Council Chamber at Mulock Drive was a sober affair characterised by hushed whispers and respectful language and where we all stand up when Mr Chee-Hing enters or leaves the Chamber.
He is a planner by trade, well practised in the dark arts. He also knows about public administration but, so far as I can tell, has no legal qualifications. And, to my continued astonishment, he has no-one sitting at his side, advising. Like all OMB adjudicators, he is on his own.
After lots of legal to-ing and fro-ing he grants a hearing specifically on the principle of development – to huge sighs of relief from the Glenway crowd – but then spoils the effect by urging the parties to move heaven and earth to get a negotiated settlement.
Principle of Development
How is it possible to split the difference on a point of principle? One side doesn’t want a development at all. The other side does. Negotiations come way down the road and only after the principle of development has been determined one way or the other.
It seems to me that the Town and Glenway will have to up their game significantly if they are to persuade Mr Chee-Hing that Marianneville can’t develop the land they now own. The Town and Glenway lawyers have got to start making the weather rather than being showered upon by the developer’s lawyer, the animated Ira Kagan, who gives the appearance of being completely on top of his brief.
Kagan is everywhere. He is already engaged on the Slessor file and also on Bob Forrest’s Clock Tower appeal. Mary Bull speaks for the Town and James Feehley for the Glenway Preservation Association. For the moment, Feehley seems to be keeping his powder dry but I hope for fireworks from him in March.
He must affect indignation on behalf of his client, even if he doesn’t feel it. He must imagine how he would feel if a developer planned to build in his back yard and then he must project (controlled and lawyerly) outrage.
The recently hired Mary Bull must submerge herself in her brief and get fully up to speed in a matter of weeks. A daunting prospect.
When addressing Chee-Hing, she inserts the word “Sir” in every second sentence to give herself a few extra nano-seconds of thinking time. By March she must be seamlessly fluent.
Now she gets things underway by asking the OMB to rule as inadmissible, the so-called “without prejudice” offers made by Marianneville in August and November.
She says that the Town had a reasonable expectation that these offers would not be put in front of the OMB. We are told this is “settlement privilege” which exists to encourage parties to resolve matters between themselves. She tells us there are very few exceptions to this rule because it is in the public interest for opposing parties to reach a settlement. So far, I am following things quite well.
She says the developer cannot unilaterally waive settlement privilege as it would make a mockery if one side could do this. Feehely agrees.
Ira Kagan appears very focussed on the job at hand. He says that when developers make “without prejudice” offers they do so hoping the details will be kept secret. Decisions would then be taken by councillors meeting in camera. He tells us this is not the way Marianneville wanted to do things.
In any event, the 23 August 2013 offer makes it clear there is no confidentiality in the offer. If it is rejected, he always said he would seek approval of the original application.
He tells Mr Chee-Hing that Marianneville’s “without prejudice” offers should not be seen as formal revisions of the application. Kagan says the Town could have had two staff reports: one public and another, containing the detailed analysis, confidential. He says the Town chose not to do this and public reports were published giving the Town’s view on the “without prejudice” offers.
On this basis he tells us there is no privilege in the sense of confidentiality because both parties disclosed their analysis of the “without prejudice” offer.
Now we are swimming in a sea of legalese with no dry land in sight. Occasionally, the lawyers pause to restate some point in clear, simple, unambiguous English.
Kagan now asserts that settlement privilege was waived explicitly by Marianneville and implicitly by the Town.
Kagan has thrown the Chair a life-line. “Stop there!” cries Chee-Hing. I see him scribbling furiously.
After a minute or two he looks up. “Please continue.”
Now Mary Bull is on her feet. She has a big cardboard box in front of her filled with all sorts of documents, telling us subliminally that her brain is handling and processing a mountain of information.
She tells us that lots of Kagan’s notes on meetings with staff and so on are not in the public domain. “It is not as if everything is out in the open.”
The Town, she says, did not consent to the “without prejudice” offers going before the OMB. To do so would discourage the Town (or indeed any municipality) from entering into settlement discussions, contrary to the aforementioned public policy considerations.
She says the developer would use the Town’s own material against the Town.
She tells the Chair: “All you should know is that there were settlement proceedings that were not successful.”
Chee-Hing looks unconvinced.
Now Kagan wades in to the argument. He tells us that at any time a litigant can make public an offer it makes. He says he did this at the very beginning. But what it cannot do is disclose discussions with the other Party. And he didn’t.
The Town chose to put its analysis of the settlement offers in the public domain.
Now that he has heard the arguments, Mr Jason Chee-Hing steps outside his corporeal self. His utterances now have all the authority and majesty of the OMB.
“The Board is more inclined to support the view of Mr Kagan.”
This means that all Kagan’s submissions can be considered.
A councillor confides: “We’ve been bruised”.
Now Kagan quizzes Ruth Victor, the outside consultant brought in by the Town to handle the Glenway file. She famously recommended the Marianneville application be turned down on technical grounds rather than on principle.
She has turned out to be a truly disastrous choice, fundamentally undermining the Town’s case to fight the Glenway development in its entirety.
Kagan is aware that he is mining gold, and it is very near the surface. He doesn’t have to do much digging.
Kagan asks if she was aware that Nick McDonald, the Planning expert retained by Glenway, had an in camera meeting with the Council. Answer: Yes.
Now Kagan is asking her what she understands by McDonald’s “Principle of Development”.
She concedes that population numbers do not support the Marianneville application but goes on to say, in a beautiful double negative, that it has not been established that the lands should not be built on.
Victor says she agrees with McDonald that the Glenway development is not needed to meet the Town’s growth targets.
Kagan asks: “At any time before 25 November (the date of the Town’s decision on Glenway) did you advise that no houses should be built on Glenway because they weren’t needed under the Growth Plan?”
Kagan zeros in: “Isn’t it the case that there is no planning basis for a no growth option.” (that is leaving Glenway as it is)
Victor replies: “Yes. That is still my position today.”
This is like being kicked in the groin.
We shall be reminded of her views, time and time again by Kagan, wearing size 14 Doc Martens.
Now Kagan takes us on a tour of technical issues, pointing out that these are all capable of resolution.
Soon we are deep into storm water ponds. Now I hear about inter connecting roads. And like-for-like development where the proposed new houses would be designed to fit in. Kagan concludes that although everything is not resolved, the developer is at least moving in the right direction.
Now it is the turn of Mary Bull to examine Ruth Victor.
We hear her ask if the Principle of Development a legitimate planning issue?
Victor concedes that it is a question that needs to be asked and answered. “I gave my planning opinion on the issue but that is different from saying there is no issue.”
Now we are into the details of scheduling the hearing proper.
Comments have got to be invited on the mass of documentation and this could take months. The “engineers’ get lots of mentions. York Region gets the wooden spoon when it comes to responding expeditiously. Then witness statements need to be exchanged. We are now wandering about in the legal and procedural undergrowth.
We end up with a hearing in two parts.
Kagan says that if the Board decides after two weeks that the development can’t proceed, that’s fine. There is no point going any further.
On that point at least, I agree with him.
The Issues List (as agreed between the Town, Marianville and Glenway)
- In the instant case, does the Growth Plan prohibit new residential units on the lands that are the subject of the applications (the subject lands)? Is it appropriate to refuse the proposed development of the subject lands (the “Proposed Development”) if it determined that the proposed development is not required to meet the population forecasts in the Growth Plan for the Greater Golden Horseshoe, 2006 (the Growth Plan)?
- Whether the Proposed Development conforms with the Growth Plan for the Greater Golden Horseshoe, 2006 (the “Growth Plan”) with respect to, amongst other things:
(a) managing growth;
(b) general intensification;
(c) population forecasts, and
(d) co-ordination of implementation of the Growth Plan
3. Whether appropriate regard has been had for matters of provincial interest, including the appropriate location of growth and development (Planning Act, s. 2 (p))?
4. Whether the Proposed Development conforms to the population and intensification policies in the (a) York Region Official Plan and (b) Newmarket Official Plan.
Are the population forecasts in respect to lands within the built boundary?
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