(download the PDF file of this Letter to the Mayor & City Council below)
His Worship Mayor and Members of Council
City of Hamilton
71 Main Street West, Hamilton Ontario - L8P 4Y5
WITHOUT PREJUDICE
Your Worship and Members of Council:
RE: White Star v. City of Hamilton- Confiscation of Property Rights without Compensation
As a follow up to the letter sent to you on March 7 2017, by A.Milliken Heisey, Q.C. (See attached letter) in which Mr. Heisey stated:
We are requesting City Council take this position and direct staff in this manner for the following reasons:
5. There is a long standing civil suit by White Star against the City in connection with the City’s actions concerning this property and White Star’s former salvage business over the past decade and beyond. The City received notice on February 22, 2017 from another solicitor retained by our client advising of White Star Group’s intention to bring proceedings against the City under the Expropriation Act for compensation. Expropriation proceedings are a statutory proceeding and applying City policy to prevent a landowner from advancing a statutory right is both improper and unfair.
I would request the opportunity to appear in front of Council to depute concerning this item. A. Milliken Heisey, Q.C.
Council did not accept the request and sent the matter to the legal department.
Currently we are preparing our case for the Divisional Court of Appeal to rule on the Procedural Fairness legislation in the matter and as to which Jurisdiction is our case of the alleged confiscation of our property rights and interest to be heard.
It is my understanding that Council relies on recommendations from the Legal Department and the Planning department in matters relating to municipal planning in order to determine and pass Resolutions and By Laws. Council expects staff to act according to a resolution directive and in compliance with applicable legislation when interfering with private owner’s property rights and interests.
It is a significant issue if staff recommendations did not properly inform Council on the issues of the applicable legislative requirements steps to be followed by the City during its planning process involving a private owner/developers property rights.
In our case evidently the recommendations to Council relating to the confiscation of our property interests and rights without full disclosure to us was not correct. The recommendation to confiscate our property development rights and delay our OPA Application ZAC-00-18 in favour of the City Commonwealth Stadium Plans would have been made by City solicitor Art Zuidema (2000 to 2010) and the City Planning Dept.
If the City confiscation of the White Star property rights and the delay of the OPA application was not in compliance with the planning legislation and Council was not advised correctly, Council would not have addressed the matter in its resolution to adopt the 2002-2003 Integrated Planning Act/Environmental Act Land Use Strategy Report, The Hamilton 2010 Commonwealth Games Land Use Strategy, without giving consideration to the legislated obligations the City had to ensure the protection of the White Star property rights and interests under our legal system.
The evidence relating to the confiscation in the years between 2000 and 2010 has been supressed by the City in the current LPAT appeal process, including the Council directed staff review report LS10017 of the City Stadium Plan and Setting Sail OPA efforts during the period. (Attached Resolutions of Sept. 15, 2010 and Oct. 13, 2010).
In the recent case Craft Acquisitions Corp., CN Railways Company v. City of Toronto before LPAT and the Divisional Court of Appeal, the issue of Procedural Fairness, confiscation of property “air” rights without compensation and the accessibility to the evidence and cross examinations of City staff and experts was ruled and decided on.
The Local Planning Appeal Tribunal brought this statutory stated case to the Divisional Court. This was the first hearing in which the interpretations of the Act has been called into question, and thus, its importance to municipal planning litigation in Ontario.
The City of Hamilton participated in the case as an Intervener, represented by City Solicitor Joanna Wice.
The Appeal Process
In 2018, the Ontario Municipal Board was replaced by LPAT which provided for the repeal of the Ontario Municipal Board Act, R.S.0. 1990, c. 0.28 and the enactment of the LPAT Act, and amendments to the Planning Act, R.S.O. 1990, c. P.13. All former members of the 0MB became members of LPAT.
[9] LPAT decides the same type of land use planning issues as the 0MB did, but pursuant to new legislation and LPAT’s Rules of Practice and Procedure.
[10] One of the changes in the new Act is the creation of a new appeal system for five types of appeals pursuant to the Planning Act, including: appeals of a council decision to adopt or amend an official plan, appeals of a decision by an approval authority to approve a decision adopting or amending an official plan, appeals of a council decision to refuse a private amendment to an official plan or non-decision of a private amendment application, appeals of a council decision to refuse a private amendment to a municipal zoning bylaw or non-decision of a private amendment application, and appeals of a decision by a council to adopt a zoning bylaw or zoning bylaw amendment:
In our case the issues is the Council delay of our private OPA application for 12 years in favour of a Council decision in 2002-2003 to adopt a City plan involving the Hamilton 2010 Commonwealth Games Land Use strategy Plan, the confiscation of our development rights without consideration to our rights of protection under the legal system for our property interests and rights.
The supressed evidence by the City was instrumental in White Star’s ability to make its full case before LPAT and the evidence will be required in the upcoming alleged confiscation case once the Jurisdiction is determined by the Divisional Court.
CONFISCATION of Property RIGHTS and INTERESTS by a MUNICIPAL DECISION
The Divisional Appeal Court in Craft v City of Toronto stated:
(#158)-Further, and significantly, municipal actions that involve an alleged confiscation of property rights can, and should be, addressed in other legal proceedings which directly address the availability of substantive rights of protection of a party’s property rights under our legal system.
It was CN Railways, represented by solicitor Allen Milliken Heisey that argued at the proceedings that the effect of the City of Toronto Public Park Plan OFA 395 was to confiscate the property rights of the Appellants without compensation.
In the White Star case that the effect of the City adopting the Hamilton 2010 Commonwealth Stadium Land Use Strategy Plan as part of the City Setting City OPA process also had the effect to confiscate the White Star property rights. The White Star ZAC-00-18 OPA application was delayed until Feb. 8 2012 by Council( Attached Res.).
The City also confiscated the White Star Auto wrecking operation in Feb. 2006 and in the City notice to White Star, City Councillor Chad Collins was quoted confirming that “He is also well aware that the OMB hearing as to the zoning change is hampering efforts to re-develop”. The City disregarded our interests did not make disclosure to us that the City had our OPA Application on Hold again while it was advancing its second Commonwealth games stadium effort Bid in Halifax. The interference had a significant economic impact upon White Star.(City email attached)
Please note that subsequent decision by LPAT on May 12 2021 was in favour of the private property”air” rights owner/developer Craft Acquisitions Corp. who did not own the land. The land was owned by CN Railways who sold the “air”rights.
The City of Toronto, who was represented by the former City of Hamilton Solicitor Joanna Wice, lost the case.
Our 2017 solicitor A. Milliken Heisey represented CN Railways at the 2019 Divisional Court and at the LPAT 2021 Appeal case Craft, CN Rail v. City of Toronto case and was successful in the matter. The recent ruling by the Divisional Court and The LPAT Decision has a significant impact on our “confiscation without compensation case”.
Mr. Heisey’s March 7 2017 request for the opportunity to appear in front of Council to assist in the resolution of the compensation matter was refuted by Council without giving his valuable expertise the full and proper consideration it deserved.
Mr. Heisey on behalf of CN Railways mediated a favourable resolution with the City and White Star at the 2012 OMB mediation process which resulted in the White Star Site Specific Residential Re Zoning By Law. The continued suppression of evidence and compensation delay by the City has thwarted the development of the White Star site.
I am requesting that Council consider the Procedural Fairness expected in its decision and revisit the Sept.15 2010 White Star Compensation Resolution and direct staff to engage with us in fair and just compensation settlement mediation before September when we are to present our material relating to the matter to the Divisional Court.
Marino Rakovac/White Star