City bureaucrats not at fault for Parker lands delays, court told

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This article was published 10/04/2024 (574 days ago), so information in it may no longer be current.

Two City of Winnipeg officials aren’t to blame for delays on a major housing project, their lawyers argued, on the first day of the city’s appeal of a court ruling that had ordered it to pay $5 million in damages to a developer.

The July 2023 judgment from 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 to be vicariously liable for the delay.

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

“Misfeasance in public office” reflects a finding of deliberately disregarding public duties with knowledge “misconduct was likely to harm the plaintiffs,” the ruling notes.

Robinson’s lawyer said the judgment misapplied the facts of the case, stressing his client didn’t have the power to make decisions about the project.

“It’s city council that ultimately decides these things. They are the decision makers… and it’s certainly not an individual in the public service who makes a recommendation in a report,” said Kevin Williams.

Williams also suggested concerns his client raised about the development application were legitimate issues a public servant should be expected to note.

He claimed there’s no evidence they were intended to harm the developer.

“You may not agree with some of the concerns but it’s not like the concerns are out of left field or that they’re completely unreasonable,” he said.

In an appeal document, the city claims the judge awarded damages in the absence of proper evidence and failed to provide adequate reason to award the damages. The city also alleged the judge made “an award of damages that was inordinately and unjustifiably high.”

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

The same 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 was not available for comment on Wednesday but has denied doing anything to delay the project, stating he was shocked by the judge’s conclusion.

Smith’s lawyer, Brian Meronek, argued his client only replaced one staff person with a more senior official on the project because the developer was complaining about delays.

“How, on God’s green earth, could it be said that this was some kind of (effort) between Orlikow and Smith to stop or thwart this project?” said Meronek.

He said Smith didn’t instruct staff to slow down the application.

“It was just the opposite,” said Meronek.

He said Orlikow also pushed for a public open house to get feedback on the project, which shows the councillor also wanted it to progress.

Meronek stressed Smith acted appropriately.

“There was zero evidence that he was acting in (any) other manner than performing his professional duties,” he said.

Lawyers who represent the city and developer Gem Equities are expected to speak in court Thursday.

In its appeal notice, the city accuses Gem Equities of contributing to the delays, such as by failing to hold public engagement sessions until 2016.

Gem began working with the city on its plan to develop the Parker lands in autumn 2013, though council did not give final approval to the proposal until November 2020, after years of delays and legal battles. Marquess recently told the Free Press the 2020 plan hasn’t moved forward due to administrative changes that came after the vote.

Council’s property and development committee is expected to vote on a current development application for the project on Thursday, which would require full city council approval.

The project would 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

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