Judge awards developer $5M after ruling 2 city planners deliberately stymied development of Parker lands

Developer Andrew Marquess has won a $5-million judgment against the City of Winnipeg and two planning officials deemed by a judge to have deliberately slowed the progress of Fulton Grove, a 1,900-unit residential development planned for the former Parker lands.

In a decision issued Thursday, King's Bench Justice Shauna McCarthy ruled former chief Winnipeg planner Braden Smith and senior city planner Michael Robinson are "liable for misfeasance in public office" for taking actions that stymied efforts by Marquess to develop 19 hectares in the northwestern corner of Fort Garry.

The city, McCarthy ruled, is "vicariously liable" for the wrongdoing of the two employees. She dismissed claims made against two other officials — planner Martin Grady and John Kiernan, Winnipeg's former director of planning, property and development.

Dave Hill, legal counsel for Marquess, said he is pleased with the result.

"It's a very difficult thing to succeed in a case against public servants. But when they do what the two of them did here, they're liable, and the city's liable for their actions," Hill said in an interview.

The lawsuit was borne out of the developer's frustration with the pace of development on lands he acquired from the city in a 2009 swap for land he owned in Fort Rouge.

In his initial statement of claim in 2018 and subsequent hearings in 2021, Marquess argued the city and its officials acted improperly when they refused to allow the development to proceed.

In a 92-page decision that analyzed the actions of all four of the defendants separately, McCarthy determined there was enough evidence to conclude Smith and Robinson deliberately got in the way of the Fulton Grove development.

"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 were aware their conduct was unlawful and likely to cause harm to the plaintiffs," McCarthy stated in her decision.

Some of those instances included efforts to change the nature of the required application, expropriating land for a retention pond without prior disclosure and bringing forward concerns about protecting trees in the Parker lands without previously making forest preservation a requirement of the application.

McCarthy also said Smith directed two City of Winnipeg planners to slow down the planning process and when one of those planners refused, he was replaced with another planner. 

The justice said Robinson abused his authority by delaying the Parker development application.

CBC News was unable to contact Smith, who lives in British Columbia. The City of Winnipeg has not yet commented on behalf of Robinson, who still works for the city.

McCarthy also said there is clear evidence both officials were acting at the behest of River Heights-Fort Garry Coun. John Orlikow.

"The impetus and motivation for this deliberate interference with the plaintiffs' applications were primarily the wishes and demands of the area councillor, and the desire of some public servants to accommodate those wishes," McCarthy stated.

The justice concluded Smith did not tell Kiernan about Orlikow's directions or concerns of other planners about Orlikow's involvement in the file.

McCarthy also concluded Smith continued to carry out Orlikow's wishes even when they were not consistent with planning principles and withheld information from the developer.

Orlikow, who was not a defendant in the lawsuit, declined comment on Thursday, stating he had just learned of the decision.

Marquess said in an interview he feels vindicated even though it is unfortunate he had to go to court.

"It was a long, long path. Development projects shouldn't be this difficult to move forward, so I'm pleased that the court recognized some of the challenges we face in trying to get applications to move forward," he said.

The City of Winnipeg has not indicated whether it will appeal the court's decision. Communications director Felicia Wiltshire said Thursday the city just received the decision and is reviewing it.

Colin Fast, the communications director for Winnipeg Mayor Scott Gillingham, said the mayor's office is also reviewing the decision.

Hill said he is pleased with the $5-million award, describing it as significant. Hill initially sought as much as $30 million from the city before eventually asking for a $17.9-million judgment to compensate Marquess for the interest incurred by mortgages on his still-vacant land.

This lawsuit is one of three legal actions between Marquess and the city over the Parker lands and the second to conclude. The developer previously convinced a judge to require the city to hold a hearing over the development, which city council approved in 2020.

Marquess later filed and rescinded a development agreement that must be concluded before construction may begin on apartments, townhouses and single-family homes for approximately 4,500 people. He now plans to file a new development agreement in the hopes construction on Fulton Grove could start in 2024.

The third and final legal dispute involves compensation for the expropriation of the retention pond. Manitoba's Land Value Appraisal Commission has yet to hold a hearing to determine what the city will pay Marquess for the land.