City of Winnipeg in contempt of court, did not act 'in good faith' in rejecting Parker lands plan: judge

A judge has found the City of Winnipeg in contempt after it ignored an order to consider a developer's plan to build new Parker lands residential units.

Justice Candace Grammond ordered the city to hold a new meeting to consider the plan, put forward by developer Andrew Marquess, for the area in Winnipeg's Fort Garry neighbourhood, just west of Pembina Highway and south of the CN Railway Rivers main line.

"It's nice to see that the court order applies to everybody and that the city or senior administrators can't say that somehow they're above the law," the developer's lawyer, Dave Hill, said in an interview.

Marquess, owner of Gem Equities, has been trying for years to get approval to build  a development called Fulton Grove, involving 1,740 housing units on the 47 acres of land, which is near the next leg of the southwest transit corridor.

City planners have refused to allow the proposal to proceed, claiming it doesn't comply with zoning rules governing developments near rapid-transit stations. The city has argued the plan needed to go through a statutory bylaw process, which requires a vote by city council before it can move to a hearing.

In October, Justice Grammond ruled that the plan could be adopted by the city as a non-statutory policy and ordered the City Centre Community Committee to hold a public meeting on Nov. 13, 2018.

At that meeting, however, the committee reaffirmed the city's position that the plan required a council vote before proceeding to a hearing, according to the statutory bylaw process. The committee further recommended that city council not vote on the proposal — which would in essence stall the project.

On Aug. 6, 2019, Justice Grammond ruled that the city and the committee — which consists of city councillors John Orlikow (River Heights-Fort Garry), Cindy Gilroy (Daniel McIntyre) and Sherri Rollins (Fort Rouge-East Fort Garry) — had intentionally violated her order.

"I do not accept that [the city], on the whole, acted in good faith or that they took reasonable steps to comply with the order," Grammond wrote in her decision.

The decision is significant for the Winnipeg developer community, Hill said.

"I've heard a lot of developers say that the city and its senior officials think they're in a vacuum and they're above it all. Well, this says they're not above it all, at all," he said.

Lawyers for the City of Winnipeg are reviewing the decision and considering options for appeal, said Michael Jack, the city's chief corporate services officer.

The decision is "not what we expected," he said, adding the city felt its approach was "within the confines of the law, and in fact was the most legally appropriate route."

The city remains open to meeting with Marquess, and Jack said he's hopeful the parties will get back to the table.

"Apart from this particular order, we'd like to see the Parker lands developed," he said.

Committee decisions overturned

Grammond ordered that the city committee's Nov. 13 decision rejecting the proposal be "purged" and a new meeting set up to consider the plan and hear the developer's rezoning application. She did not, however, set a fixed time frame for that to happen.

City planners will also have to revise their report on the developer's plan, which repeatedly called for it to follow the statutory bylaw process.

Grammond acknowledged that even if the city had followed her order at the Nov. 13 meeting, the outcome might not have been substantively different — but that wasn't the issue she was asked to rule on.

"I was not asked to direct the public service to provide particular recommendations with respect to the applications, and I did not do so," she wrote. 

Still, Hill says his clients are hopeful that with different reports from city planners, the politicians on the committee will come to a different conclusion. He also noted that the provincial government is considering creating a process to override city zoning and planning decisions.

"All of that's at play," Hill said. 

Hill says it is significant that a judge has found the city in contempt, noting in his research, he found only two other instances when a Canadian municipality was found in contempt of court. He was also not aware of any instances when a city committee was found in contempt.

Hill has requested a meeting with the city within the next week and hopes a new meeting can be scheduled with the committee in September. Once that meeting happens, the developers may seek financial penalties from the city.