Kingsway opponents failed to make their case, Sudbury judge rules

All day Monday, the Kingsway Entertainment District was the subject of a Superior Court proceeding via video conference. (File)

Sudbury — Opponents of the Kingsway Entertainment District failed to prove city council in Greater Sudbury was biased when it approved the project, a judge in Sudbury wrote in his decision released online Thursday.

Justice Gregory Ellies, regional senior judge for the Northeast Region, rejected nearly all the arguments put forward by lawyer Gordon Petch, representing Sudbury businessman Tom Fortin, who took the city to Superior Court to fight the project.

Petch made a number of arguments – that council acted too quickly, failed to give them a chance to make their case, that some councillors were threatening KED opponents – all of which Ellies rejected.

The judge was particularly critical of the bad faith argument, addressing it last because he said it is the basis for their case.

"In a general way, it underlies all of the applicant’s allegations and, because it is without foundation, it also undermines them," Ellies wrote.

While rejecting arguments the city approved the KED bylaws "in haste," the judge wrote that even if that was true, opponents haven't explained why they would want to do that.

"The submission that the city was in a hurry to pass the bylaws is really only a submission that there is circumstantial evidence that the city had an improper purpose," Ellies wrote. "But what is that purpose? The applicant has never pointed to anything that would motivate the city or council to act in bad faith."

In previous cases where city councils and other bodies have been found to be acting in bad faith and against the public interest, he said the reason was obvious.

"There must be some evidence that a majority of council acted other than in the public interest," Ellies wrote. "There is no evidence of that in this case.

"The only evidence I have before me is that there were good reasons to select either the downtown or the Kingsway sites for the arena/event centre. Choosing one over the other could only be improper if the choice was made for reasons other than the public interest. There is no evidence that the decision of council was based on anything other than those interests. Indeed, the evidence suggests that the opposite is true."

Hearing set for Sept. 17-18

The Superior Court ruling was in advance of a two-day hearing beginning Sept. 17 by the Local Planning Appeals Tribunal, in which Fortin is also participating. The LPAT had earlier ruled the bias arguments were beyond its jurisdiction, and suggested they be taken to another court.

City council selected the Kingsway as the site for the project in June 2017, with planning approvals passed in early 2018. It was immediately appealed to the LPAT. The two-day hearing will deal with planning arguments against the KED, with a decision expected later this year or early 2021.

If the tribunal rules in favour of the KED opponents, city council could either fix whatever issues the LPAT finds and pass a new decision, or change course entirely. If the LPAT rules in the city's favour, that decision can be appealed, although that appeals process is much shorter.

Greater Sudbury has already secured $200 million in low-interest bonds to finance the KED, as well as the downtown Junction project. The Junction will see a new library, art gallery and performing arts centre built downtown.

The KED includes a new arena, a Gateway Casino and hotel on land near the Moonlight Beach area of the city.

Read the full decision here.