Court told $5-M award to Parker lands developer warranted

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This article was published 11/04/2024 (553 days ago), so information in it may no longer be current.

A court order that the City of Winnipeg pay $5 million in damages to a developer should stand, since the municipal government essentially froze progress on a major development for years, the developer’s lawyer argued in court Thursday.

During the second and final court date for a city appeal of the order, lawyer Kevin Toyne argued the financial award is justified, noting his client had sought about $18 million in damages. Toyne said the amount awarded largely reflects land costs throughout a five-year period when the city allegedly delayed the project, which is warranted.

“(The $5 million is) roughly a million dollars a year for each year of the, give or take, five years of delay that (the judge) found,” he told court.

The July 2023 judgment that sparked the appeal found two city employees – former chief planner Braden Smith and senior city planner Michael Robinson – liable for “misfeasance in public office.” It ruled they had deliberately stalled the housing development.

Manitoba Court of King’s Bench Justice Shauna McCarthy also deemed the city government to be vicariously liable for the delay.

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

The court matter relates to a long-standing allegation from Gem Equities owner Andrew Marquess that the city deliberately stalled the proposed Fulton Grove development of the former Parker lands.

McCarthy concluded Smith had directed city planners to slow down the approval process and she concluded Robinson had delayed the project from being considered by a city council committee. The judgment also claims Coun. John Orlikow (River Heights-Fort Garry) — who was not named as a defendant in the legal challenge — interfered with the approval process.

Orlikow was not available for comment Thursday but has denied doing anything to delay the project.

Toyne argued the councillor did express a desire to limit building heights and the number of housing units in the development.

“The dilemma was Coun. Orlikow wanting to limit building heights to six storeys for non-planning-related reasons,” he said.

Toyne said the city changes risked reducing the residential density for the development to as many as 1,000 fewer units than the developer proposed.

“Coun. Orlikow repeatedly made it clear during various meetings that he was concerned about density,” he said.

By contrast, the City of Winnipeg’s lawyer told court Thursday the trial judge made errors in law that warranted the appeal.

“The court ought to not infer malice unless that is the only other reasonable inference that can be drawn. I would suggest to you that that was not the case in this matter,” said Nicole Beasse.

In an appeal document, the city argues that Gem Equities actually caused some delay to the project, in part by declining to begin public consultations until 2016. It also alleged the judge failed to provide adequate reason to award the damages and made “an award of damages that was inordinately and unjustifiably high.”

On Wednesday, lawyers for the two city employees found liable by the judgment argued their clients did work to move the application forward.

On Thursday, Robinson’s lawyer, Kevin Williams, stressed his client’s recommendations were based on council-adopted policy for density limits.

“He’s obligated to comply with the city’s policy… He was doing his job,” said Williams.

He said his client has since suffered negative consequences from the judge’s finding.

“It’s a completely concocted claim against Mr. Robinson, which has caused him significant distress and harm,” said Williams.

Justices James Edmond, Diana Cameron and David Kroft heard the appeal. On Thursday afternoon, Cameron said a decision will be reserved to an unspecified later date.

Gem Equities began working with the city on its plan to develop the former Parker lands in autumn 2013 but council did not approve the project until 2020, after years of delays and legal battles. The proposal hasn’t moved forward since then.

Marquess said administrative changes after the vote led him to file a new application instead.

Meanwhile, council’s property and development committee voted in favour of the latest Fulton Grove proposal on Thursday, which still awaits a final council vote.

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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