Lawyers for the developer behind the long-delayed Parker lands development told an appeal court Thursday it should uphold a decision awarding their client $5 million in a lawsuit against the City of Winnipeg.
Lawyer Kevin Toyne, representing developer Andrew Marquess, told the Manitoba Court of Appeal that the actions of city planners prevented the development on land in the city’s Fort Garry area from proceeding, leading to significant losses for his client.
Marquess and his company “were effectively frozen because they couldn’t get their applications to a committee,” Toyne said.
Marquess filed a lawsuit against the city over the delay in 2018, arguing the city and its officials acted improperly when they refused to allow the development to proceed.
In a July 2023 decision, Manitoba Court of King’s Bench Judge Shauna McCarthy wrote there were “several instances of bad faith and deliberate conduct” on the part of chief city planner Braden Smith and senior planner Michael Robinson, intended to stall developer Andrew Marquess’s bid to build more than 1,900 housing units on land in Fort Garry.
She wrote the two planners did this at the direction of River Heights-Fort Garry Coun. John Orlikow, who was not a defendant in the case.
Toyne said while his client was seeking $18 million in damages, the $5 million award works out to about $1 million per year that the project was delayed.
However, the city appealed that ruling. The two-day hearing at the Manitoba Court of Appeal began Wednesday.
During the hearing, the City of Winnipeg’s lawyers argued the trial judge didn’t adequately explain her reasons for the $5 million award.
Lawyer Nicole Beasse told the three-judge panel that McCarthy made “errors in law” when she found the planners and the city liable for misfeasance in public office.
“It’s clear from jurisprudence that the court ought not to infer malice unless that is the only other reasonable inference that may be drawn,” Beasse said.
“I would argue that is not the case in this matter.”
‘Completely concocted claim’ against planner: lawyer
Beasse told the court that before the trial hearings began in the fall of 2021, lawyers for Marquess had wanted to bring in an expert to quantify the damages they believed the city owed them, but the judge refused to allow it.
Instead, McCarthy awarded the developer “damages at large,” which are determined by a judge when the amount has not been determined in advance.
Beasse said that was a mistake, “when the plaintiff has not proven loss, but they certainly would have been able to do so.”
Toyne, though, said the judge’s decision was reasonable.
“The fact that both sides might not be thrilled with it at least is a preliminary suggestion that it’s not entirely unreasonable,” he said.
On Wednesday, lawyers for Robinson and Smith argued the two planners were doing their jobs and raising legitimate concerns.
They also said their clients didn’t have the power to make decisions about the project. That power lies with council, they said.
On Thursday, Robinson’s lawyer, Kevin Williams, argued there was a “completely concocted claim” against his client, which “has caused him significant distress and harm.”
Development clears 2nd hurdle at city hall
One of the issues in the case was around whether the development application to the city should follow a “statutory” or “non-statutory” process. Statutory processes are more complicated because they involve changes to the city’s bylaws, requiring public hearings.
McCarthy concluded city staff chose to follow the more complicated statutory process at Coun. Orlikow’s request in order to slow down the project.
At the appeal hearing, Justices James Edmond, Diana Cameron and David Kroft questioned Marquess’s lawyers about that finding, asking whether that was the correct conclusion.
“If Orlikow is speaking for the public and the public is saying we want input, I don’t see anything nefarious about it,” Justice Cameron said.
Toyne said the facts of the case show that city staff were responding to Orlikow’s desire to stall the project.
“This is a change that’s being made because Orlikow wants to see that change,” he said.
He said the River Heights-Fort Garry councillor pushed for changes that would limit the development’s buildings to six storeys, which would have reduced the number of units by approximately 1,000.
The appeal court judges reserved their decision.
Meanwhile, on Thursday morning, city council’s property and development committee approved the latest proposal by Marquess to move forward with developing the Parker lands.
The vote was unanimous and took place without a debate.
The proposal for what’s now called the Fulton Grove development still faces approval at city council’s executive policy committee on April 16. It’s slated to come before council as a whole on April 25.