Bias alleged at OMB pre-hearing for Burl’s Creek

By Andrew Philips Orillia Packet & Times

The lawyer representing groups opposed to Burl’s Creek gaining a temporary-use bylaw permitting special events this summer wants the Ontario Municipal Board (OMB) to issue a prohibition order until it has rendered a final decision.

During a full-day pre-hearing at the Oro-Medonte Township administration building Friday, David Donnelly told OMB member Colin Hefferon it’s not right for the events park to go ahead with a large automotive flea market along with two major music festivals until the OMB has released its final report following a full hearing slated for next month.

“Tickets are already on sale,” said Donnelly, who represents the West Oro Ratepayers’ Association (WORA) and Save Oro. “Please ask the appellant if they intend to break the law.”

But Burl’s Creek representative Nicholas Macos pointed out the prohibition order request is already before another provincial body (the Ontario Court of Justice) since Save Oro secretary Wendy McKay has sought an injunction to try to stop the WayHome Music and Arts Festival and Boots and Hearts Music Festival.

“What’s really happened here is we’ve taken a sleepier little event grounds,” Macos said to heckles from the capacity crowd.

“This has become a more professional operation. This is a matter of broader community interest and even regional interest.”

But besides the prohibition order, Donnelly formally asked Hefferon to recuse himself from the entire process.

Donnelly outlined ways he finds Hefferon has shown bias by seeming to rush the process, since three days have been set aside rather than the 10 days Save Oro and WORA would like.

“There is bias on the part of the member for a quick hearing to resolve things without all of the evidence,” Donnelly said, adding his clients view the brief amount of time set aside next month as a sign shortcuts are being taken.

“This will lead a reasonable person to believe that your are biased,” he told Hefferon. “My client has formed the opinion that the chair is biased.”

Donnelly also asked Hefferon to address concerns he may have been asked to limit the time allotted for the hearing, even suggesting, as a car enthusiast, Hefferon may have wanted to have the hearing completed prior to June’s Barrie Automotive Flea Market — a notion Hefferon dismissed.

As well, Donnelly said, Hefferon’s reported earlier quip this will be a “quick and dirty” hearing isn’t appropriate given the enormity of the issue as it relates to potential long-term consequences the decision will have on the lives of area residents.

Donnelly also presented a series of photographs he said were taken the day after last summer’s Boots and Hearts festival ended, including shots that show vulgar graffiti, garbage and one showing two men urinating in public.

“This is not some minimal enterprise,” he said, adding Hefferon wasn’t being asked to address a “benign” application for camping and parking.

“This is a an extreme and major occupation of land that has a significant impact on the community.”

As well, Donnelly said, the Simcoe County Federation of Agriculture wishes to be part of the process but, as of yet, isn’t guaranteed the right to address the board, while the Montagnais Métis First Nation is only being given 30 minutes to present its direct evidence.

Donnelly, who went on to outline seven distinct ways his groups are being denied “natural justice,” told Hefferon he simply isn’t being given enough time to present his own witnesses or cross-examine witnesses called by the other parties.

“Ninety minutes over 10 witnesses only allows nine minutes of cross-examination,” he said, pointing out 21 of his 30 witnesses can be deemed experts. “We don’t know how long the experts will need to present their evidence.”

But Macos said Donnelly is using delay tactics since he has known for some time the direction of Burl’s Creek’s evidence, along with who its witnesses will be.

“The board has its own jurisdiction to adopt its own time constraints and to marshal evidence,” he said. “Save Oro is simply just trying to get its way. That’s not a bias. We can’t keep re-litigating this.”

Township counsel Christopher Williams agreed, noting all parties should be moving ahead in good faith, rather than presenting “posturing and delays.”

Hefferon said he would reserve comment on the recusal request.

No decision was made during Friday’s meeting. The parties will hold a conference call at 2 p.m. Monday to further discuss the issues, including whether an extra day will be added to the May hearing.