City appealing order to pay $5M in damages to Parker lands developer

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This article was published 31/08/2023 (797 days ago), so information in it may no longer be current.

The City of Winnipeg is appealing a recent court judgment ordering it to pay $5 million in damages to a local developer.

The court decision — which ruled two city officials deliberately delayed a major construction project — relates to a long-standing allegation from Gem Equities owner Andrew Marquess over stalled progress on the Fulton Grove development at the former Parker lands.

In a July 6 judgment, Manitoba Court of King’s Bench Justice Shauna McCarthy found former chief planner Braden Smith and senior city planner Michael Robinson liable for “misfeasance in public office,” and deemed the City of Winnipeg to be vicariously liable for the delay.

In a notice of appeal filed Wednesday, the city argues the ruling is “contrary to the law.”

It claims the judge awarded damages in the absence of proper evidence and failed to provide adequate reason to award the damages, among other issues.

The city also alleges the judge made “an award of damages that was inordinately and unjustifiably high.”

Michael Jack, Winnipeg chief administrative officer, said the city must challenge the decision to determine how best to handle future development applications.

“The overriding reason (to appeal) is simply that the decision itself now leaves us in an area of uncertainty that we need the court of appeal to clarify… (about) how this decision would impact the city’s ability to handle development applications, particularly as it pertains to our public servants and our planners — how staff are expected to interact with the elected officials in the committee structure,” he said Thursday.

The CAO noted the judgment found fault with how elected officials affected progress on the file, but said it did not offer parameters as to what should have happened.

“It simply left us with a big grey area of uncertainty,” said Jack.

McCarthy found Smith directed city planners to slow down the development approval process, and replaced one planner on the project who refused to do so. She found Robinson delayed the project from being considered by a city council committee.

The judgment claims Coun. John Orlikow (River Heights-Fort Garry) — who was not named as a defendant in the legal challenge — interfered with the approval process.

“The evidence is also clear, in my view, that the impetus and motivation for this deliberate interference with the plaintiffs’ applications were primarily the wishes and demands of the area councillor, and the desire of some public servants to accommodate those wishes,” wrote McCarthy.

Orlikow has denied the allegations, stressing he never tried to delay the project.

He is currently on leave from council due to undisclosed physical health concerns and did not respond to a request for comment Thursday.

When asked about the claims related to Orlikow, Jack said the City of Winnipeg believes some facts of the judgement are incorrect, but it is not making a specific assertion about the councillor.

He said the appeal required the approval of the mayor and the chairperson of council’s property and development committee, which were granted.

The lawyer representing Marquess, Dave Hill, said the legal matter involved thousands of documents, so extensive evidence was considered in the decision.

“(This is) an appeal and that just delays the ultimate payment of the funds, if we’re successful (and) the judgment is sustained… I hope (the appeal is) not a delay tactic by the city,” Hill said.

The developer and the city are scheduled to meet in court Sept. 5 to discuss the amount of legal costs that should be awarded in the case.

Jack said the city will ask the judge to pause a decision on that matter, pending the outcome of the appeal.

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Gem Equities began working with the city on its plan to develop the Parker lands in autumn 2013, according to the July 6 judgment. Council did not give final approval to the proposal until November 2020, after years of delays and legal battles.

In its appeal notice, the city accuses Gem Equities of contributing to those delays, such as by failing to hold public engagement sessions until 2016, despite city prompts to do so as early as 2014.

Fulton Grove is slated to add 1,918 housing units on 47 acres of south Winnipeg land bordered by the CN Railway Rivers line and southwest rapid transitway.

joyanne.pursaga@freepress.mb.ca

Twitter: @joyanne_pursaga

Joyanne Pursaga
Reporter

Joyanne is city hall reporter for the Winnipeg Free Press. A reporter since 2004, she began covering politics exclusively in 2012, writing on city hall and the Manitoba Legislature for the Winnipeg Sun before joining the Free Press in early 2020. Read more about Joyanne.

Every piece of reporting Joyanne produces is reviewed by an editing team before it is posted online or published in print — part of the Free Press‘s tradition, since 1872, of producing reliable independent journalism. Read more about Free Press’s history and mandate, and learn how our newsroom operates.