Winnipeg developer to ask Supreme Court to hear contention city stalled his development

Developer Andrew Marquess plans to ask the Supreme Court of Canada to hear his contention that the City of Winnipeg slowed the progress of a 1,900-unit residential development in Fort Garry, lawyer Dave Hill said Tuesday.

Last week, the Manitoba Court of Appeal overturned a July 2023 Court of King's Bench decision that said two city planners had engaged in misfeasance by stalling the development of the Fulton Grove development on the former Parker lands.

In the 2023 decision, King's Bench Justice Shauna McCarthy concluded that former chief city planner Braden Smith and senior planner Michael Robinson had engaged in "bad faith and deliberate conduct" to stymie efforts by Marquess to develop the 19-hectare parcel of land he initially acquired from the city in a 2009 land swap.

McCarthy ordered the city to pay Marquess $5 million. The City of Winnipeg appealed.

In a 99-page decision issued on Thursday, a panel of three appeal court judges ruled McCarthy made "palpable and overriding errors" in some findings, as well as in the inferences she drew from the evidence to determine Smith and Robinson engaged in unlawful and deliberate conduct as public officers. 

"The evidence falls short of meeting the high bar of proving that Smith and Robinson are liable for misfeasance in public office," Court of Appeal Justice James Edmond wrote on behalf of the panel.

Marquess has 60 days to ask the Supreme Court of Canada to consider an appeal of the Manitoba Appeal Court decision. Requests of this nature are required because the Supreme Court only chooses to hear cases that settle matters of public importance.

Winnipeg Mayor Scott Gillingham said Wednesday that Marquess is entitled to ask the Supreme Court to consider hearing an appeal.

Gillingham said he was pleased the Manitoba Court of Appeal made it clear that River Heights-Fort Garry Coun. John Orlikow did nothing wrong in his communication with city planners.

While Orlikow was not a defendant in Marquess's claim against the city, the Court of King's Bench declared Robinson and Braden were acting at his behest.

"The original ruling from the original case was such that it really left a lot of ambiguity and uncertainty," Gillingham said.

"Councillors and I were wondering, 'Well, can we or can we not talk to city staff?' and so I was really pleased to see the outcome of the appeal."