Judge says COVID impact cannot be part of appeal over mega-hospital site
The group fighting the proposed mega-hospital’s location failed in its attempt Wednesday to add the spectre of COVID-19 to its arguments, as it seeks to appeal the crucial ruling it lost in November.
Adding fresh evidence is normally not allowed when seeking to appeal a decision by 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.
But these are exceptional times, said Eric Gillespie, lawyer for Citizens for an Accountable Megahospital Planning Process (CAMPP).
“The evidence before you in this situation is completely unprecedented,” he told Superior Court Justice Gregory Verbeem, who ultimately decided to not allow CAMPP to add the impact of COVID -19 to the issues CAMPP is citing. Verbeem will continue his video hearing Monday to determine whether he’ll allow CAMPP to appeal the LPAT ruling to Ontario’s Divisional Court.
A dismissal could be the end of the legal fight by CAMPP, removing a major hurdle in building the single state-of-the-art acute care hospital. Gillespie made the point Wednesday that CAMPP supports a new hospital, but has concerns about the chosen rural site.
CAMPP argued that when plans for the mega-hospital were being made, a global pandemic of this scale was not taken into account. Gillespie said that’s obviously not the tribunal’s fault. But he said as a result of COVID-19 there’s been a provincially declared state of emergency, the cancellation of Transit Windsor bus service for a month and the establishment of a field hospital for recovering COVID patients at St. Clair College’s Sportsplex.
He called the impact of COVID the “elephant” or “beluga” in the room. It’s a factor that should be considered, he said, “simply because everyone in the community would quite reasonably say we should plan our hospital for situations like this and we have learned lessons already ... that could be used in the planning of this hospital.”
But lawyers for the city and the hospital both insisted that while COVID-19 wasn’t a known threat while the new hospital was planned and its location was approved by council in 2018, that doesn’t mean pandemics in general weren’t taken into account.
“It cannot be that every time a new factual issue arises in the world that you can go back and revisit a tribunal’s decision,” lawyer for the city Jennifer King said. “The real issue (raised by CAMPP) is that planning of a pandemic of this scale was not considered. There is no evidence to support that contention before this honourable court.”
She said if the COVID issue was brought into the case, some impacts may support CAMPP’S position on the right location for the hospital, while others might support the County Road 42 location.
“It just opens up a whole number of considerations and is not a simple issue and is not relevant to the issue that’s before the court.”
In dismissing the pandemic argument, Verbeem said that allowing new evidence that wasn’t around at the time of the original hearing could lead to an endless cycle of litigation.
“While it is accurate that the LPAT did not consider COVID-19 implications in arriving at its decision, one must recall it was not asked to do so,” he said, concluding that his court does not have jurisdiction to admit fresh evidence.
“The only basis on which the court could allow CAMPP’S appeal ... is an error of law alone,” he said.
Following the daylong deliberations, CAMPP’S Gillespie appeared to shrug off not being allowed to raise the COVID implications.
“As a result, we simply carry on with what everyone has known for many months would be the subject matter of the appeal,” he told the Star.
CAMPP claims that: First Nations were not adequately consulted during the hospital planning issue; climate change impacts were not properly planned; there were unresolved conflicts in expert evidence; and that the hospital’s location doesn’t ensure that emergency services are properly located within the city.
Windsor’s Official Plan says that emergency services — such as a hospital’s emergency department — should be in proximity to where people live, Gillespie told the court. And yet the proposed hospital site is in the middle of 988 acres of largely undeveloped land that was part of the Official Plan and zoning changes. He claimed the tribunal didn’t properly follow the Official Plan policy on locating emergency services and therefore there was an error in law.
“At this point, no one lives in this area, it’s a greenfield,” he said. “This is bootstrapping a development in.”
It cannot be that every time a new factual issue arises in the world that you can go back and revisit a tribunal’s decision.