The City of Hamilton and Waterfront Shores – the developer who won the bid to build out the City’s planned Pier 8 redevelopment – have not reached a settlement with resident appellants Herman Turkstra and Harbour West Neighbours Inc.
All parties stood in front of the Local Planning Appeal Tribunal on April 10, 2019, to report on their progress toward an agreement following an unexpected decision of the Tribunal the week prior which pushed all the parties into a week of intensive settlement talks.
Local Planning Appeal Tribunal member Blair Taylor, presiding over the appeal hearing, asked the parties for updates on their progress in finding an agreement.
All sides reported progress. Due to the talks being “without prejudice”, none of the parties provided any details, stating that time would be needed to find agreement on outstanding issues.
Member Taylor asked if the parties would find LPAT mediation assistance helpful. A lengthy discussion followed, with parties stating they would need time to determine this.
Mediation was not ordered. Member Taylor stated that he could assist the parties to secure mediation if requested.
The parties had reached an agreement on a key point of contention – the role of Herman Turkstra in the hearing.
At dispute, could Herman Turkstra self-represent as an independent party, not as legal counsel, in light of many factors, including that Turkstra is a planning lawyer by trade.
Member Taylor stated he wanted to know from other parties’ lawyers why he should accept their agreement on Turkstra’s role.
Adding to the complexities, Harbour West Neighbours Inc. is independent of Turkstra at the hearing. However, HWN is represented by lawyer Scott Snider of Turkstra Mazza – the same law firm in which Turkstra is a partner. Turkstra is also Vice-President of HWN.
Member Taylor, the lawyers, and Turkstra exchanged detailed legal arguments regarding Turkstra self-representing – could he be a witness on the stand, advocate on his own behalf, call evidence, and cross-examine all within the same hearing?
Member Taylor stated he would make a ruling after an hour’s recess.
He returned after 45 minutes and made his ruling.
He started by stating that he took “no view of the law in this matter,” seeming to reference Turkstra’s arguments about natural justice and case law submissions.
“The Tribunal master of its own house”, Taylor declared firmly, seeming to remind the parties that he, and he alone, had the power to decide whether or not to accept their agreement.
He stated, “I, with reluctance, will allow [the settlement] … on a one-off basis”.
Member Taylor made clear that his ruling was not to be cited in future cases, that he was not ruling on the underlining points of law, and that he was merely accepting that the parties had reached an agreement.
He reserved the right to reconsider during the hearing.
With that, the hearing was complete. The Member set September 30th to begin this hearing phase, and remained seized of the matter.
The Member stated he would be available to assist the parties with arranging mediation, and encouraged them to continue work towards a settlement.
The appeals by the two industrial Hamilton Port Authority tenants remain outstanding. Parrish & Heimbecker, with Bunge Canada sheltering under their appeal, continue to negotiate with the City and Waterfront Shores. Their LPAT hearing is scheduled for 15 days starting September 30.
The Tribunal has been informed by all parties in the industrial appellants phase that the planned 15 days will not be necessary. Hence, the Tribunal is placing the residential appeals into this timeslot.
Production Details v. 1.0.0 Last edited: April 15, 2019 Author: Joey Coleman Edit Record v. 1.0.0 original version