‘Misfeasance in public office’: city ordered to pay $5M for deliberate delays in development project

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This article was published 07/07/2023 (1042 days ago), so information in it may no longer be current.

A court judgment is ordering the City of Winnipeg to pay $5 million in damages to a local developer, due to a ruling two planning officials deliberately delayed progress on a major construction project.

The decision relates to a long-standing allegation from Gem Equities owner Andrew Marquess that some city officials abused their public positions to stall progress on his Fulton Grove development at the former Parker lands.

The development is slated to add 1,918 housing units on 47 acres of south Winnipeg land surrounded by CN Railway Rivers line and the southwest rapid transitway.

In a decision released Thursday, Manitoba Court of King’s Bench Justice Shauna McCarthy found former chief planner Braden Smith and senior city planner Michael Robinson liable for “misfeasance in public office.”

“I find that there were several instances of bad faith and deliberate conduct, which were intended to slow or frustrate the plaintiffs’ applications and that the individuals involved were aware that their conduct was unlawful and likely to cause harm to the plaintiffs,” wrote McCarthy.

“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 decision also found the City of Winnipeg to be vicariously liable for the delay.

“I am of the view that exemplary damages should be awarded at large, as an express condemnation of the improper conduct of the public servants in this case,” wrote McCarthy.

The judgment dismissed claims against Winnipeg’s former director of planning, property and development John Kiernan, and planner Martin Grady.

On Friday, Marquess said he’s comfortable with the damage amount awarded by the court, though it won’t cover all of his losses.

“It’s incredibly frustrating and it’s years of your life you’re not going to get back, dealing with something that was obviously designed to cause harm. That part of it is… tough to reconcile,” he said.

The legal decision notes Gem began working with the city on its plan to develop Parker lands in autumn 2013, and submitted a draft secondary plan in spring 2014.

Council did not give final approval to the proposal until November 2020, after years of delays and legal battles. The approval came after Gem Equities had obtained a court order that required council to consider the project.

The decision released Thursday also states Coun. John Orlikow (River Heights-Fort Garry) — who was not named as a defendant in the legal challenge — interfered with the approval process.

“The evidence is also clear, in my view, that the impetus and motivation for this deliberate interference with the plantiffs’ applications were primarily the wishes and demands of the area councillor, and the desire of some public servants to accommodate those wishes,” wrote McCarthy.

Orlikow declined comment Friday, stating he’s reviewing the decision.

Dave Hill, who represented Marquess in court, said he’s pleased with the decision and the “significant” damages awarded.

“I am very happy for the client. It’s a difficult case to win and we were successful,” the lawyer said.

The judge’s decision finds Smith directed city planners to slow down the development approval process, and replaced one planner on the project who refused to do so.

The document states Smith also withheld information from both Marquess and the city’s director of planning, property and development, and followed Orlikow’s direction even when it wasn’t consistent with planning principles.

McCarthy found Robinson delayed the project from being considered by a city council committee, which she deemed “an abuse of his authority.”

Coun. Brian Mayes, who served as chairman of the property and development committee when council approved the project, said he is “not shocked” by the legal decision.

“It always troubled me that you had a piece of land where you built a rapid transitway right there, at enormous cost. You should be trying to encourage density and instead we had years and years and years of process,” said Mayes.

The St. Vital councillor said he believes the city approval of some development applications, which can require community committee, standing policy committee, executive policy committee and council votes, needs to be streamlined.

“We have to revisit how we do planning decisions. It’s ridiculous. We have these four different stages now, and there’s still a right (in some cases) to go to the (provincial) municipal board (to appeal after that). We need to simplify this and, if the (legal) decision helps spur that on, maybe that’s the silver lining here,” said Mayes.

Colin Fast, a spokesman for Mayor Scott Gillingham, said the court decision is being reviewed.

“The mayor’s office is still reviewing the decision and waiting for recommendations from the (city’s) administration on potential next steps,” Fast said in a written statement.

When asked if the city will appeal the decision, communications director Felicia Wiltshire said the public service is also still reviewing the ruling.

Marquess hopes to begin construction next year and estimates it could take about a decade to complete.

The judgment finds the city should also compensate the developer for court costs, and suggests the two sides work together to determine that amount.

joyanne.pursaga@freepress.mb.ca

Twitter: @joyanne_pursaga

Joyanne Pursaga
Reporter

Joyanne is city hall reporter for the Winnipeg Free Press. A reporter since 2004, she began covering politics exclusively in 2012, writing on city hall and the Manitoba Legislature for the Winnipeg Sun before joining the Free Press in early 2020. Read more about Joyanne.

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