‘Shocking’ lack of First Nations input cited in hospital appeal

One mistaken letter in an email address led to a “shocking” lack of proper notice to local Indigenous people, the group fighting the new mega-hospital location asserted Monday as it sought to appeal a crucial ruling it lost in November.

Failing to adequately consult with First Nations is one of four reasons Citizens for an Accountable Megahospital Planning Process (CAMPP) is raising as it seeks leave to appeal the decision of the Local Planning Appeals Tribunal, which supported the City of Windsor zoning and official plan changes required for Windsor Regional Hospital’s $2-billion mega-hospital to locate on County Road 42.

One requirement of the planning process was for the city to consult with local First Nations.

Efforts last year consisted of emails in early March to Walpole Island First Nations and Caldwell First Nations, asking for responses by March 26, and subsequent followup emails. But the initial email to Walpole Island had one letter wrong in the email address so it never reached those Indigenous leaders.

The mistake was only corrected on the due date.

“What it indicates is a wrong email address was used repeatedly and finally corrected on the date submissions were due, at 3:02 p.m., notifying the party you’ve got today to send your materials in,” CAMPP lawyer Eric Gillespie said, charging that the city showed an “abysmal lack of meeting any legal standard” by effectively giving Walpole a two-hour deadline.

“If that constitutes providing proper notice when it comes to a First Nation … that qualifies with the word ‘shocking.’”

The two-day video hearing concluded with Superior Court Justice Gregory Verbeem reserving his decision on CAMPP’S application. He’ll also be deciding on costs.

A dismissal of CAMPP’S case could end the group’s long-standing legal battle against the hospital location. CAMPP has been advocating for a location in the city’s core.

Lawyers for the city and Windsor Regional Hospital spent much of the day arguing against CAMPP’S claims that: First Nations were not adequately consulted during planning; climate-change impacts were not properly planned for; there were unresolved conflicts in expert evidence; and the hospital’s location doesn’t ensure that emergency services are properly located within the city.

CAMPP was arguing that all these alleged failings constitute errors in law, which is the only reason an LPAT decision can be appealed.

“Each of CAMPP’S proposed grounds for appeal is a challenge to the tribunal’s factual findings and an attempt to relitigate” the case, hospital lawyer Brian Gover said, asking that the justice dismiss CAMPP’S application.

Jennifer King, representing the City of Windsor, said CAMPP “failed to raise a single extricable legal error.”

Speaking about the late-arriving email, King said there’s no indication that the city wouldn’t have accepted a late submission from the Walpole Island.

In the ensuing months, city staff had conversations with Caldwell First Nations representatives and there was ample public awareness of the hospital issue, with public meetings and a city council meeting where every delegation was permitted to speak, she said.

“So there’s no suggestion the city would not have accepted submissions or comments from the First Nations.”

She said there was no evidence that any local First Nations attempted to comment. She said while the city must take reasonable steps to provide notice, it cannot force a party to come to the table.

CAMPP contends that the tribunal didn’t consider the evidence it provided on such issues as the climate change impact of locating a hospital so far from the city core. Gillespie said the tribunal’s 31page document hardly mentions such words as “climate.”

“That’s why CAMPP says there is an obvious error of law,” he said. “CAMPP has no idea why it lost on the issue of climate change because it is not addressed in any way.”

He said the tribunal also erred by failing to address the issue of locating a hospital far away from most people.

The County Road 42 site was actually the second choice in the selection process. The top-scoring site was the GEM site behind the Home Depot off Tecumseh Road East. The 42 site was ultimately chosen after price was factored in.

“We simply say it was an error of law for the (tribunal) member to ignore the evidence,” Gillespie said.