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Mark Brown makes procedural errors, botches his housing appeal

Citizen Brown appeared without legal representation at an Ontario Land Tribunal hearing, facing off against Jeffrey King, a City of Sault Ste. Marie lawyer

Procedural bungling by citizen Mark Brown has scuttled the activist's battle against a big housing development to be built at 204 South Market St. near the Giant Tiger store.

The Ontario Land Tribunal (OLT) has dismissed an appeal launched by Brown against the 376-unit residential project, citing at least two procedural errors made by him.

Tribunal members Eric Crowe and Kurtis Smith ruled an appeal form submitted by Brown did not include mandatory reasons or explanations and was therefore invalid.

Instead of providing the required land-use planning grounds for his appeal, Brown had simply written: "I will be happy to bring to light if given the opportunity to do so at an OLT hearing on this matter."

"The tribunal cannot consider relief in this case since it is outside the jurisdiction of the tribunal to provide relief from a statutory requirement," Crowe and Smith said in written reasons released last week.

Brown appeared at an OLT hearing on Feb. 22 without legal representation, facing off with solicitor Jeffrey King representing the City of Sault Ste. Marie.

The tribunal upheld a legal precedent that allows self-represented citizens some degree of accommodation or latitude for their circumstances, but it still insisted statutory requirements must be equally applied to everyone.

In other words, a tribunal may allow some flexibility to non-lawyers in applying its own rules, but no such mercy exists for failing to do things declared mandatory by legislation.

King believes citizen Brown also messed up on two other procedural obligations:

  • he filed an appeal for a zoning bylaw amendment but failed to appeal a corresponding official plan amendment. Brown's biggest concern was that 30 per cent of the housing development would not be required to be geared-to-income units, as the official plan requires. But city council had authorized a change to the official plan exempting the project from this requirement, and Brown failed to appeal it. He acknowledges that was a procedural mistake
  • Brown's appeal had no reasonable possibility of success. The tribunal ruled that only one ground is necessary to dismiss an appeal, so it didn't need to comment on this one

The development by ESC Land Development Corp. of Caledon East, Ont., is now able to proceed.

It consists of four five-storey apartment buildings totalling approximately 348 dwelling units in the western portion of the property, 28 multiple-attached (townhouse) dwelling units within the eastern sector and a 3,600-square-metre personal storage facility on the northern part of the property.

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David Helwig

About the Author: David Helwig

David Helwig's journalism career spans seven decades beginning in the 1960s. His work has been recognized with national and international awards.
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