Judge made 'palpable' errors in ruling city deliberately stalled Parker lands development: Appeal Court

The City of Winnipeg has been exonerated from stalling a 1,900-unit residential improvement planned for the erstwhile Parker lands.

Manitoba's highest tribunal overturned a King's Bench judge's determination that recovered 2 readying officials deliberately slowed Fulton Grove's progress.

Developer Andrew Marquess of Gem Equities filed a suit against the city, borne retired of his vexation with the gait of improvement connected lands helium acquired from the metropolis successful a 2009 swap for onshore helium owned successful Fort Rouge.

In his archetypal connection of assertion successful 2018 and consequent hearings successful 2021, Marquess argued the metropolis and its officials acted improperly erstwhile they refused to let the improvement to proceed.

In a July 2023 decision, Manitoba Court of King's Bench Judge Shauna McCarthy wrote determination were "several instances of atrocious religion and deliberate conduct" connected the portion of main metropolis planner Braden Smith and elder planner Michael Robinson, for taking actions that stymied efforts by Marquess to make 19 hectares successful Fort Garry.

She wrote the 2 planners did this astatine the absorption of River Heights-Fort Garry Coun. John Orlikow, who was not a suspect successful the case.

While Marquess was seeking $18 cardinal successful damages, the tribunal awarded him $5 million.

The metropolis appealed the determination with Manitoba's highest tribunal past twelvemonth and a sheet of 3 judges ruled McCarthy made "palpable and overriding errors" successful immoderate findings arsenic good arsenic successful the inferences she drew from the grounds to find Smith and Robinson engaged successful unlawful and deliberate behaviour arsenic nationalist officers. 

In a 99-page decision, written by Court of Appeal Justice James G. Edmond connected behalf of the sheet and released connected Thursday, the tribunal determined McCarthy "erred successful her exertion of the instrumentality successful 2 respects."

The proceedings justice failed to analyse the parameters Smith and Robinson were compelled to enactment wrong arsenic nationalist officers, according to the appeal's decision.

She besides failed to code if the 2 metropolis employees were alert of their conduct's unlawfulness and the likelihood of harm to the developer successful bid to enactment her findings. 

"The grounds falls abbreviated of gathering the precocious barroom of proving that Smith and Robinson are liable for misfeasance successful nationalist office," the appeal's determination said. 

'Nothing nefarious'

The Court of Appeal said determination indispensable beryllium an appraisal of a nationalist officer's authorization earlier it tin beryllium determined whether it was exceeded. However, the proceedings justice didn't see the applicable argumentation model of the metropolis planners to find if they breached their obligations. 

In 1 instance, McCarthy recovered Robinson's effort to transportation an head of the zoning and permits part to contradict the developer a licence to stockpile and people capable astatine the Parker Lands tract "was an maltreatment of his authorization and was done for an improper intent with conscious disregard for the consequences to Gem."

But the sheet of judges, which reviewed different alleged errors from the proceedings judge, said the grounds showed Robinson had alternatively investigated the "appropriateness of the licence applications." 

"Robinson was performing his occupation arsenic a planner erstwhile helium raised concerns regarding grades, drainage and the effect connected the wood located wrong the Parker Lands," the appeal's determination said. 

"The grounds does not found that Robinson did thing unlawful for an improper intent oregon extracurricular his statutory authority."

McCarthy had besides concluded Smith and Robinson breached their work by seeking feedback from Orlikow. But the Court of Appeal disagreed saying determination was "nothing nefarious astir gathering with and receiving feedback" from the councillor. 

The Court of Appeal determination said planners spell to stakeholders, including section country councillors to solicit feedback to make a robust plan.

In a akin manner "Marquess and different representatives of Gem met with Orlikow connected galore occasions arsenic good to sermon his views and the readying process," the appeal's determination said. 

While nationalist officials whitethorn astatine immoderate constituent enactment extracurricular their authorization by seeking feedback from a councillor, McCarthy failed to find however Smith and Robinson could person crossed that line.

The proceedings justice had besides recovered Smith and Robinson had a reckless oregon conscious disregard for the interests of the developer. 

But the tribunal of entreaty said she did not bash a robust appraisal to find the metropolis employees' behaviour was deliberate attempts to dilatory down the improvement exertion and that they consciously disregarded its involvement with the misconduct. 

"Absent immoderate consciousness of harm, determination is nary ground connected which to reason that Smith and Robinson breached an work that they owed to [the developer]," the appeal's determination said. 

Regarding Smith, the proceedings justice recovered helium made deliberate attempts to thwart the improvement applications erstwhile he ordered the adjacent reappraisal of the project's secondary plan, soon aft Orlikow expressed his deficiency of enactment for the projected development.

But the Court of Appeal recovered Smith's behaviour was much accordant with performing his duties arsenic the main planner, ensuring the improvement was accordant with bylaws.

His actions "do not enactment an inference that helium acted deliberately for an amerciable oregon improper purpose" to dilatory down the development, according to the appeal's decision.

"I would let the appeals, acceptable speech the judgement … and disregard the enactment successful its entirety," Edmond said successful the decision.

Mayor Scott Gillingham applauded the determination and said the metropolis is continuing to enactment with the developer to determination the Fulton Grove task forward, with the anticipation that operation tin statesman this year.

"This is simply a important ineligible and fiscal triumph for the City of Winnipeg, and it confirms that our unit acted successful bully religion portion managing a analyzable file," Gillingham said a connection provided to CBC News.

"It besides makes wide that Coun. Orlikow was doing his occupation appropriately successful representing his constituents. Dialogue betwixt councillors and unit is indispensable to serving the nationalist effectively."