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City could still see St. Clair streetcar project rolled out

Asking panel to declare decision void

Judge an activist in affected community


The St. Clair streetcar project may have some life after all.

The City of Toronto hopes to get a new hearing for its St. Clair Ave. W. streetcar project by getting the judges who ruled against the city last week to recuse themselves from the case due to the appearance of perceived bias on behalf of Mr. Justice Ted Matlow.

In doing so, the judges would declare void their decision to halt construction of an elevated right of way down the centre of the road. It doesn’t mean the project could go ahead; the matter would simply be re-heard by a different panel of judges.

“The City of Toronto and the people of Toronto are entitled to a hearing before a panel of judges in whom it is reasonable to believe there is no apprehension (appearance) of bias,” Mayor David Miller said last night.

Lawyer Earl Cherniak will argue next Tuesday the entire panel � Ted Matlow, Susan Greer and Ellen Macdonald � should step aside because of Matlow’s previous involvement as head of a community association that opposed a parking garage at 453 Spadina Rd. at the corner of Thelma Ave. in Forest Hill Village.

  • On Sept. 8, 2003, he wrote to the auditor general for the city that the city solicitor’s review of the parking garage was “ridiculous.”

  • He was quoted in newspaper reports that the city wanted “to whitewash everything” about the selling off of “choice real estate for a song.”

  • He wrote on “Justice Ted Matlow” letterhead to Miller asking him to reverse the city decision.

The city also says Matlow lives in the St. Clair area that the city wants to redevelop.

“It’s fair to say the judicial code of ethics contains clear guidelines about when it’s appropriate for a judge to speak on matters of public interest,” said Miller. “It’s not appropriate to speak on matters of public interest when a litigant may appear before you later because it does create a reasonable apprehension of bias.”

Representatives from the Save Our St. Clair group, who argued successfully that the city violated the Planning Act with the project, will be in court next week when the motion is heard.

“SOS remains a party to these proceedings,” said SOS lawyer Eric Gillespie. “What if any role SOS has to play in this is unclear at this point.”

On Oct. 11, the three-judge panel sided with SOS, who argued that the city had violated the Planning Act by not amending the official plan to allow for the transit right of way on St. Clair. The judges ordered the city and TTC not to proceed with work to elevate the streetcar tracks during reconstruction of St. Clair.

The judges have not yet released the written reasons for their decision.

The city is expected to seek leave to appeal the decision over St. Clair, and Miller added the city would be in a position to seek leave to appeal the decision of the panel on the recusing issue if it doesn’t go its way.

Construction on the $65 million project was to have begun Oct. 12.

Opponents say the raised streetcar tracks would become a barrier on the street and lead to traffic chaos.