Judge in Parker lands lawsuit erred in awarding developer $5M, lawyers for Winnipeg city planners say

A Manitoba judge's decision to award millions of dollars in damages to a developer was based on a flawed understanding of City of Winnipeg processes and ignored legitimate reasons for not approving the project, lawyers for two city planners argued in court on Wednesday.

Last year, Court of King's Bench Justice Shauna McCarthy found former chief planner Braden Smith and senior planner Michael Robinson liable for misfeasance in public office, for actions they took related to developer Andrew Marquess's plan to build approximately 1,900 homes, condos and apartments in an area known as the Parker lands.

McCarthy found the city "vicariously liable" for the actions of its two employees, and awarded Marquess $5 million in damages. 

The city is now appealing that decision.

In her 92-page July 2023 decision, McCarthy wrote there were "several instances of bad faith and deliberate conduct" intended to stall the project, including efforts to change application requirements, expropriating land for a retention pond, and raising concerns about protecting trees on the land without previously making that a requirement. 

McCarthy found that Smith directed two planners to stall the project on the wishes of River Heights-Fort Garry Coun. John Orlikow, who was not a defendant in the lawsuit. When one of the planners refused, Smith had him replaced, McCarthy's decision said.

In Manitoba Court of Appeal on Wednesday — the first day of the two-day hearing — lawyers for Smith and Robinson argued McCarthy made serious errors in her decision, which was delivered more than a year after the trial wrapped up hearings in the fall of 2021. 

They said the evidence in the case failed to show how the actions of Smith and Robinson were unlawful or intended to cause harm to Marquess.

"The trial judge's assessment in most cases was factually wrong, it was misplaced, it was based on innuendo, supposition and speculation, not on the valid inference of facts presented," argued lawyer Brian Meronek, acting on behalf of Smith.

Meronek brought up examples that he said prove Smith attempted to speed up the process in Marquess's favour, such as when Smith raised concerns about the time it was taking the public works department to decide whether one roadway needed to be widened.

McCarthy also mischaracterized the reason Smith replaced one of the planners working on the project, Meronek alleged, saying that was done in response to complaints from Marquess about how long the process was taking.

"How the trial judge could come to an opposite conclusion is beyond me," Meronek said.

'The exact same concerns'

In her 2023 decision, McCarthy dismissed claims made against two other city officials — planner Martin Grady and John Kiernan, Winnipeg's former director of planning, property and development.

Grady was involved in a decision rejecting an application for a fill and grading permit on the land.

Lawyer Kevin T. Williams, representing Robinson, said the reasons Grady gave for rejecting the application — including concerns about how water flow could harm trees on the land — were the same as those raised by his client.

"They can't be reasonable in one context and unreasonable in another. They're the exact same concerns," Williams said.

The two lawyers also argued McCarthy failed to explain how the communication between Orlikow and the planners was inappropriate, given his position as the area councillor.

Regarding the damages awarded to Marquess, the lawyers said McCarthy's decision did not explain why the amount given was appropriate.

"It's the plaintiff's own fault that they couldn't prove their damages.… It's not appropriate for the court to take it upon themselves to say, 'Well, they must have suffered some damage, and so therefore, I'll give them $5 million," Williams said.

Last week, council's city centre committee voted to approve a new application from Marquess to rezone the Parker lands for a development officially dubbed Fulton Grove. The property and development committee will consider the plans at its meeting on Thursday.

The appeal hearing will also conclude Thursday, when the City of Winnipeg's lawyer will make arguments, before lawyers for Marquess give their response.

Justices James Edmond, Diana Cameron and David Kroft are presiding over the hearing.