2023 MBKB 114, 2023 MBKB 114

Date: 20230706 Docket: CI 18-01-17082 (Winnipeg Centre) Indexed as: 6165347 Manitoba Inc. et al. v. The City of Winnipeg et al. Cited as: 2023 MBKB 114 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: 6165347 MANITOBA INC. and 7138793 MANITOBA LTD., ) ) Dave G. Hill Kevin D. Toyne and ) Faye A. Brandson plaintiffs, ) for the plaintiffs ) - and - ) Douglas R. Brown ) Nicole K. Beasse and THE CITY OF WINNIPEG, JOHN KIERNAN, ) Vivian F.Y. Li BRADEN SMITH, MICHAEL ROBINSON ) for the defendant The City of Winnipeg and MARTIN GRADY, ) ) Thor J. Hansell and defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Danielle A.

Barchyn for the defendant John Kiernan Brian J. Meronek, K.C. and Erin Lawlor Forsyth for the defendant Braden Smith Kevin T. Williams and J. Matthew Nordlund for the defendant Michael Robinson Michael G. Finlayson for the defendant Martin Grady Judgment Delivered: July 6, 2023

McCARTHY J. Introduction [ 1 ] The Plaintiffs, 6165347 Manitoba Inc. and 7138793 Manitoba Ltd., which I will collectively describe as GEM, have made a claim against four employees of the Defendant, The City of Winnipeg (the "City") for misfeasance in public office.

The City is also named as a Defendant and concedes that if any of the named Defendants are found liable, the City is vicariously liable for any wrongdoing of their employees in the course of their employment. [ 2 ] For the reasons that follow I find that Braden Smith (“Smith”), Michael Robinson (“Robinson”) and the City are liable for misfeasance in public office. The claims against John Kiernan (“Kiernan”) and Martin Grady (“Grady”) are dismissed.

Overview [ 3 ] In 2009 GEM acquired approximately 58 acres of the northern Parker Lands (“Parker Lands”) from the City pursuant to a “land swap” for property it owned in the Fort Rouge Yard area (“FRY”).

The intention in acquiring the Parker Lands was to develop it into a multi-family development called Fulton Grove. [ 4 ] The City Council minutes which approved the transfer of the lands to the Plaintiffs indicated that the development process was to be a developer led secondary planning process involving public consultations. [ 5 ] For the purposes of this decision it is important to comment on some of the terminology used throughout.

Although they mean somewhat different things in some circumstances, in this decision reference to an Area Master Plan, Master Plan, Local Area Plan and Secondary Plan are used interchangeably. Within that category of plans there can be two types: statutory and non-statutory.

Statutory plans are also referred to at times as by-law plans. [ 6 ] Similarly, development applications in this decision are referred to as a Development Application for Subdivision and Rezoning (“DASZ”) which for the purposes of this decision incorporates a Plan Development Overlay (“PDO”). [ 7 ] The Defendant, Kiernan, had been a manager of Urban Planning and Design (“Urban Planning”) until October 1, 2015 when he became the Director of the City’s Planning, Property & Development Department (“PPD”).

That department has several divisions within it including Urban Planning and Zoning and Permits. [ 8 ] The Urban Planning Division of PPD is divided into the Development Application Branch and the Plan Implementation Branch. [ 9 ] In this case, Robinson worked in the Development Application Branch under the supervision of James Veitch (“Veitch”). That branch handled DASZ applications. [ 10 ] The Plan Implementation Branch was responsible for Secondary Plan applications.

Glen Doney (“Doney”) and James Platt (“Platt”) were planners in that branch who worked under the supervision of Brett Shenback (“Shenback”). [ 11 ] Smith in his capacity as Chief Planner of Urban Planning oversaw both divisions. [ 12 ] All Defendants are educated and have earned designations as planners, except Kiernan.

The Defendants and their respective departments, as well as other City departments, are sometimes referred to herein as the “public service” for ease of reference. [ 13 ] In the fall of 2013, GEM began working collaboratively with Doney on a plan for development of the Parker Lands. [ 14 ] In the spring of 2014, the Plaintiffs had engaged environmental, site servicing and traffic assessments of the Parker Lands and on April 4, 2014, Lawrence Bird (“Bird”), the planner for the Plaintiffs, provided the first draft of a Secondary Plan to Doney for review. [ 15 ] By late May 2014 Doney advised the Plaintiffs and various City employees that the goal was to bring the Secondary Plan and DASZ to the City Centre Community Committee (“CCCC”) by November 2014 for their approval. [ 16 ] By November 2014, however, a number of issues with respect to the development had been raised by the area Councillor, John Orlikow (“Orlikow”), and the City had not yet advised of the specifics of the Plan with respect to a retention pond they wished to build on the Parker Lands. [ 17 ] By mid-December 2014, the Plaintiffs and Doney were both indicating that the Secondary Plan was close to the point where it could be made public. [ 18 ] Between February 2015 and January 2018 the Plaintiffs and PPD were unable to finalize the Secondary Plan and the DASZ to their mutual satisfaction for reasons that will be outlined in detail later in these reasons. [ 19 ] On January 12, 2018, the Plaintiffs formally submitted their Secondary Plan and on February 9, 2018, the Plaintiffs submitted their DASZ.

The feedback from the public service was that extensive changes were required and the applications could not proceed concurrently. [ 20 ] On June 7, 2018, the Plaintiffs filed a Mandamus Application in the Court of Queen’s Bench (as it was then) seeking that the

City be required to consider the DASZ and the Secondary Plan applications at the same meeting and on a non-statutory basis. [21] In September 2018, GEM’s applications were denied First Reading by the Standing Policy Committee on Property andDevelopment, Heritage and Downtown Development (the “SPC”) on the recommendation of PPD. [22] On September 19, 2018, the Plaintiffs were granted an Order of Mandamus in the Court of Queen’s Bench, and on October 12,2018, a further Order was granted requiring the City to move the applications forward at its CCCC meeting on November 18, 2018. [23] On November 13, 2018, the CCCC considered the Secondary Plan and rejected the applications without First Reading basedupon the recommendations of the public service. [24] On February 15, 2019, the City and the CCCC were found to be in contempt of the Court of Queen’s Bench Order and theirdecisions of November 2018 were set aside.

A motion by the City to set aside the Contempt Order was dismissed. [25] On November 26, 2020, both the Secondary Plan and the DASZ were approved by City Council. The approval was contingentupon the Plaintiffs and the City entering into a Development Agreement.

At the time of trial no Development Agreement had beencompleted. [26] At trial the Plaintiffs called Andrew Marquess (“Marquess”), Geoff Zywina (“Zywina”), and Chris Snelgrove (“Snelgrove”) onbehalf of GEM, two planners, Michelle Richard (“Richard”) and John Wintrup (“Wintrup”) hired by GEM as consultants, and fouremployees of PPD, Doney, Veitch, Shenback and Platt to give evidence. [27] Each of the Defendants testified on their own behalf and the current Chief Administrative Officer (“CAO”) for the City, MichaelJack (“Jack”), testified. Issues [28] The issues in this trial were: (

a) Have the Defendants committed the tort of misfeasance in public office? (

b) If so, is the City vicariously liable? (

c) Damages. Misfeasance in Public Office The Law [29] The Supreme Court of Canada first set out the test for misfeasance in public office in 1959 in the case of Roncarelli v. Duplessis, (SCC), [1959] SCR 121. That case involved abuse of public office for a purpose. [30] The Roncarelli test has since been applied in Manitoba in Gershman v.

Manitoba Vegetable Producers’ Marketing Board, (MB CA), [1976] MJ No 129 (QL), at pp.123 and 125, where O’Sullivan J.A. stated: The principle that public bodies must not use their powers for purposes incompatible with the purposes envisaged by the statutes underwhich they derive such powers cannot be in doubt in Canada since the landmark case of Roncarelli v. Duplessis (1959), (SCC), 16 D.L.R. (2d) 689, [1959] S.C.R. 121.

Since that case, it is clear that a citizen who suffers damages as a result of flagrant abuseof public power aimed at him has the right to an award of damages in a civil action in tort. … In the case before us, there was no power in the defendant Board to use its authority for the purpose either of driving the Gershmanfamily out of business or of punishing the plaintiff for his representations concerning the Gershman company debt or of forcing theplaintiff to have the company pay a debt for which it was liable but for which he was not. [31] In Odhavji Estate v.

Woodhouse, 2003 SCC 69, Iacobucci J. stated: 22 What then are the essential ingredients of the tort, at least insofar as it is necessary to determine the issues that arise on thepleadings in this case? In Three Rivers, the House of Lords held that the tort of misfeasance in a public office can arise in one of twoways, what I shall call Category A and Category B. Category A involves conduct that is specifically intended to injure a person or classof persons.

Category B involves a public officer who acts with knowledge both that she or he has no power to do the act complained ofand that the act is likely to injure the plaintiff. This understanding of the tort has been endorsed by a number of Canadian courts: see forexample Powder Mountain Resorts, supra; Alberta (Minister of Public Works, Supply and Services) (C.A.), supra; and Granite PowerCorp. v. Ontario, [2002] O.J. No. 2188 (QL) (S.C.J.).

It is important, however, to recall that the two categories merely represent twodifferent ways in which a public officer can commit the tort; in each instance, the plaintiff must prove each of the tort’s constituentelements. It is thus necessary to consider the elements that are common to each form of the tort. 23 In my view, there are two such elements. First, the public officer must have engaged in deliberate and unlawful conduct in his orher capacity as a public officer. Second, the public officer must have been aware both that his or her conduct was unlawful and that itwas likely to harm the plaintiff.

What distinguishes one form of misfeasance in a public office from the other is the manner in which the

plaintiff proves each ingredient of the tort. In Category B, the plaintiff must prove the two ingredients of the tort independently of oneanother. In Category A, the fact that the public officer has acted for the express purpose of harming the plaintiff is sufficient to satisfyeach ingredient of the tort, owing to the fact that a public officer does not have the authority to exercise his or her powers for an improperpurpose, such as deliberately harming a member of the public.

In each instance, the tort involves deliberate disregard of official dutycoupled with knowledge that the misconduct is likely to injure the plaintiff. … 32 To summarize, I am of the opinion that the tort of misfeasance in a public office is an intentional tort whose distinguishingelements are twofold: (

i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawfuland likely to injure the plaintiff. Alongside deliberate unlawful conduct and the requisite knowledge, a plaintiff must also prove theother requirements common to all torts. More specifically, the plaintiff must prove that the tortious conduct was the legal cause of his orher injuries, and that the injuries suffered are compensable in tort law. [32] In 2012, the British Columbia Supreme Court in Rocky Point Metalcraft Ltd. v.

Cowichan Valley Regional District, 2012BCSC 756, the Honourable Fisher J. stated: [82] Bad faith covers a wide range of conduct in the exercise of local government authority. It includes dishonesty, fraud, bias, conflictof interest, discrimination, abuse of power, corruption, oppression, unfairness, unreasonable conduct, and conduct based on an impropermotive or undertaken for an improper, indirect or ulterior purpose.

Bad faith does not necessarily require wrongdoing or personaladvantage on the part of any members … [83] Unlawful discrimination may be found where a bylaw singles out one property without regard to valid and bona fide planningprinciples, or where there is an improper motive to favour or hurt one property without regard to the public interest… [84] Whether or not there is bad faith or discrimination is essentially a question of fact to be determined on the totality of the evidencein each case.

In many cases, inferences of bad faith may have to be made … [33] And most recently, in 2021 the Supreme Court of Canada in Ontario (Attorney General) v. Clark, 2021 SCC 18, Abella J. stated: [22] The elements and proper scope of the tort of misfeasance are not disputed in this appeal. A successful misfeasance claim requiresthe plaintiff to establish that the public official engaged in deliberate and unlawful conduct in his or her capacity as a public official, andthat the official was aware that the conduct was unlawful and likely to harm the plaintiff (Odhavji Estate v.

Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 23, per Iacobucci J.). [23] The unlawful conduct anchoring a misfeasance claim typically falls into one of three categories, namely

an act in excess ofthe public official’s powers, an exercise of a power for an improper purpose, or a breach of a statutory duty (Odhavji, at para. 24). Theminimum requirement of subjective awareness has been described as “subjective recklessness” or “conscious disregard” for thelawfulness of the conduct and the consequences to the plaintiff (Odhavji, at paras. 25 and 29; Powder Mountain Resorts Ltd. v. BritishColumbia (2001), 2001 BCCA 619 , 94 B.C.L.R. (3d) 14 (C.A.), at para. 7; Three Rivers District Council v.

Bank of England(No. 3) (2000), [2003] 2 A.C. 1 (H.L.), at pp. 194-95, per Lord Steyn). [34] In 2008, the Ontario Court of Appeal in Ontario Racing Commission v. O’Dwyer, 2008 ONCA 446, at para.43 noted that publicoffice is to be defined in “a relatively wide sense”. In Clark, Abella J. used the term “public official”. And in Alevizos v. ManitobaChiropractors Association et al, 2009 MBQB 116, McKelvey J. stated at para. 118 that “[a] public official is one who has a dutyimposed on him/her under

an Act or regulation.

This definition is wide enough to include those who hold public office or who act undera statutory authority…” and defines "public officer" to include any person in the public service of the government. [35] There was no dispute in this case that each of the Defendants are public officials and subject to the common law principlesoutlined above. [36] In this case, the Plaintiffs allege that each of the individual Defendants have committed acts of misfeasance and that the City isvicariously liable as a result. [37] As these claims are against individual City employees, I will address my findings of misfeasance in public office generally andwill then address the conduct of each named Defendant individually.

Positions of the Parties [38] The Plaintiffs argue that the evidence before the Court, and in particular the internal email communications and meeting notes ofvarious members of the public service demonstrate that the Defendants were acting deliberately and unlawfully in an effort to slow downor thwart the Plaintiffs’ development with disregard for the harm their actions were causing the Plaintiffs.

The Plaintiffs point to severalactions by the Defendants as being an exercise of power for an improper purpose, bad faith, and/or a breach of their statutory duties asplanners under the authority of The City of Winnipeg Charter Act (“Charter”), and their professional Codes of Conduct.

Such conduct,they argued, included acting and instructing others to act based upon the political wishes of a ward Councillor, rather than developmentand planning principles; instructing City employees to slow the process down; recommending that the developer’s applications not beproperly considered by City Council and/or committees to the detriment of the developer; attempting to delay, or prevent, the issuance ofa fill permit; interfering with the protection of the Plaintiffs’ property rights; and withholding, or subverting, the provision of informationto which the Plaintiffs were entitled.

[ 39 ] The Plaintiffs allege that the named Defendants intentionally tried to slow down and prevent the approval of their development plans at the request of the ward Councillor and that they knew that his reasons for not wanting the development to proceed were, at least in part, for political reasons, and to keep the value down on the land expropriated from the Plaintiffs until they had been paid. [ 40 ] The Defendants argued that there was no evidence of unlawful or intentional actions by any of the Defendants which were deliberate and intended to cause delay or harm to the Plaintiffs.

In the alternative, if there was any such conduct, no damage was suffered by, or proven by, the Plaintiffs. [ 41 ] The Defendants argued that the development process for Parker Lands was lengthy and complex because of the nature of the development and related developments in the surrounding areas. They also argued that the development process was hampered at times by a significant lack of resources within the public service which occasionally caused delays.

They also attributed some of the complexity and delay in the process to changing policies within the public service rather than an intention to treat this development differently than other similar developments. [ 42 ] The Defendants deny any connection between the Plaintiffs’ development applications and the proceedings before the Land Value Appraisal Commission (“LVAC”), the City expropriation branch, with respect to the Plaintiffs’ expropriated lands.

They argued that the Plaintiffs misunderstand the appraisal process as it relates to expropriated lands. [ 43 ] And finally, the Defendants argued that the public service, while taking into account the views and wishes of the ward Councillor as a stakeholder, was not taking direction from him or acting with disregard for their duties as planners and public servants.

The Facts [ 44 ] The law of misfeasance in public office, as set out above, requires a determination of whether, on the balance of probabilities, the individual Defendants have engaged in a deliberate disregard of their public duties with knowledge that the misconduct was likely to harm the Plaintiffs. That determination must be made on a careful assessment of the whole of the evidence. [ 45 ] What follows is a lengthy dissertation of the facts gleaned from several weeks of testimony and thousands of pages of documents. As one might expect, there are no admissions of misfeasance relied upon by the Plaintiffs.

Rather, a review of the lengthy development process was required in order for the Court to identify the conduct of each of the Defendants and to draw appropriate inferences as to the intentions behind that conduct. [ 46 ] In this case, I am satisfied on a balance of probabilities that the evidence as a whole establishes a pattern of conduct of the Defendants, Smith and Robinson, which rises to the level of misfeasance in public office. With respect to the other Defendants, the Plaintiffs have not met the onus of proving misfeasance.

I am also of the view that the City is vicariously liable for the improper conduct of its employees and the reasonable damages that flow from their conduct. [ 47 ] The 2009 minutes of the City Council vote that approved the initial land swap between the City and the Plaintiffs indicated that the process was to be “…a developer led secondary plan for the Fort Rouge lands and the Parker Lands, which secondary planning process shall incorporate appropriate public consultations”. [ 48 ] Thereafter, the Plaintiffs commenced the planning process for the FRY property in 2010, and a non-statutory Secondary Plan and DASZ were developed cooperatively between the PPD and GEM.

In the FRY case, both applications were heard at one meeting by the relevant City committees in the fall of 2010, and were both approved by City Council within nine months of the process starting. Further, the FRY development was treated as a transit-oriented development (“TOD”), notwithstanding the fact that the City’s zoning by-law had not yet been amended to include a TOD zone and the City’s official TOD handbook was still being developed. 2013 [ 49 ] In early 2013, the Parker Lands development process was initiated by Marquess contacting PPD on behalf of GEM and meeting with Smith.

Smith then assigned Doney as the City planner on the project in November 2013.

Both Marquess and Doney described undertaking a collaborative developer led planning process at that time. [ 50 ] In compiling the initial package of information for the Plaintiffs, Doney solicited input from other members of PPD, telling them that “[t]hese lands are likely to be developed into transit-oriented multiple-family dwellings, parks and some commercial and institutional uses” (Ex. 11). [ 51 ] In December 2013, Doney provided Marquess with an information package containing information that the Parker Lands “will not be connected by a road or path” to the Taylor Major Redevelopment Site (“MRS”) .

It also indicated that the site was to be developed in accordance with the principles of TOD. The package included the OurWinnipeg and Complete Communities information that would govern the development process (Ex. 12). OurWinnipeg is the City’s official development plan and Complete Communities is a related development strategy by-law.

The Parker Lands are designated as one of 11 MRS’s within those development plans and by-laws. [ 52 ] There was no indication in that package that the forest was to be preserved or that the City intended to expropriate 6.7 hectares of the land from the Plaintiffs, two issues that would later become very significant to the planning process.

There was also no indication that the site was considered isolated or otherwise particularly problematic for residential development, issues also raised by the public service years later. [ 53 ] Based upon internal City communications at that time the need for a retention pond in the area had already been identified, but that information was not provided to the Plaintiffs until January 2014 when they were told that the City wished to put a retention pond on part of the Parker Lands (Ex. 27). 2014

[ 54 ] In early 2014 as a result of this information Marquess attended a meeting with the Chief Operating Officer of the City, and Orlikow, the City Councillor representing the River Heights and the Fort Garry wards where the Parker Lands were located, to inquire into whether the City retention pond could be located somewhere else. No response to that inquiry was known for several months. [ 55 ] In April of 2014, the Plaintiffs had arranged for environmental, site servicing and traffic assessments of the Parker Lands and submitted their first draft of the Secondary Plan to Doney for review.

At that time they were still awaiting a decision by the City on the location of the retention pond. [ 56 ] In mid-May 2014, Doney suggested proceeding with public consultation, however, Marquess advised that he wanted to wait until PPD and the area Councillor were all on the same page before holding public consultations (Ex. 64 p. 1). [ 57 ] By May 27, 2014, Doney had advised the Plaintiffs and others in PPD that the goal was to have the Secondary Plan and the DASZ go concurrently for committee approval in November 2014 (Ex. 68 and Ex. 73 p.1). [ 58 ] On June 6, 2014, without the knowledge of Marquess, Doney met with Orlikow “to discuss the draft plan and its associated topics” (Ex. 84).

Following that meeting Doney sent an email to his supervisor, Shenback and Robinson, conveying a message from Orlikow to PPD that “the Parker Lands Plan (the Plan) shall be approved as a Secondary Plan” and “there’s not rush to complete the Plan [sic]” and “no public engagement should take place before the Civic Election” (Ex. 86). This information was not shared with the Plaintiffs. [ 59 ] Shenback then relayed the content of Doney’s June 6, 2014 email to Smith. Shenback stated that: The Councillor believes that the Plan should be approved as a secondary plan.

Thus far all other Area Master Plans have not been statutory... This area is somewhat unique given that in 2009 there was a motion directing the Public Service to prepare a developer led secondary plan for Parker lands. The Councillor believes that this provides the justification for a secondary plan as opposed to a non-stat plan.

A bit of a wrinkle – The motion also included Fort Rouge Yards, which was not adopted as a secondary plan but rather endorsed by Council. (Ex. 87) [ 60 ] On June 9, 2014, Orlikow wrote to Doney that the preparation of a developer led Secondary Plan was not necessary at that time, and that in his view the project was not ready for consultation.

Doney forwarded this email to the attention of Smith and Shenback, but it was not shared with the Plaintiffs (Ex. 89). [ 61 ] By September 29, 2014, no public engagement had yet occurred and Marquess sent Doney an email inquiring about the rezoning process and asking whether it was “slowed down and is stalled? Nothing has progressed for a long time” (Ex. 105 p. 6). [ 62 ] In late October 2014, Doney told Marquess that the City was not reviewing the servicing, sewer and water reports regarding the portions of the Plaintiffs’ land where the City intended to place a retention pond.

Doney also emailed some of his colleagues and urged them to make the City’s position on the retention pond clear as the City had not, at that point, conveyed its intention to expropriate land from the Plaintiffs (Ex. 111). [ 63 ] This issue persisted into November 2014, at which point Marquess advised Doney that he needed to know about the specific dimensions of a City retention pond on the Plaintiffs’ land in order for his engineers to complete the work required to design a development on the Parker Lands (Ex. 116). [ 64 ] On November 20, 2014, Doney expressed concern to Shenback that GEM needed to be advised of the Councillor’s expectations on the forest and the contents of the Master Plan (Ex. 119).

Shenback then advised Smith that a meeting would be arranged with Orlikow (Ex. 120). [ 65 ] On November 24, 2014, Doney emailed Orlikow to advise that they were wanting to plan the use and development of the Parker Lands. Orlikow almost immediately emailed the Director of PPD requesting that he call him. The Director responded inviting the input of the Councillor as a stakeholder with respect to the Plan (Ex. 112). Later that same day, Doney emailed Smith and copied Platt, Shenback and Robinson. The email indicated in bold that no formal application for approval of either Plan had been made.

He went on to reiterate matters decided at his June 6, 2014 meeting with Orlikow, including that Urban Planning should not be discussing the forest issue with GEM, that there was no rush to complete the Master Plan and that no public engagement should take place before the election. He also outlined subsequent direction from the Councillor that he required assistance from Planning (PPD?) to save the forest and would speak to Smith about that, that preparation of the Secondary Plan was not necessary until all servicing and forest issues had been determined.

Next steps were identified by Doney as updating the Councillor and learning his thoughts on the Plan. [ 66 ] On December 16, 2014, Doney emailed Shenback to advise that the Plaintiffs and the City were “close to creating a Master Plan that could be made public.” (Ex. 130) Doney’s use of “Master Plan” suggested the process would be non-statutory. This email was forwarded to Smith who replied to Doney and Shenback that “I understood that it was to be a [statutory] Secondary Plan. That was relayed to me at the same meeting Glen attended with Cllr Orlikow a while back” (Ex. 130).

Shortly after receiving Smith’s email about Orlikow’s instructions, Doney wrote to Shenback “[t]hen I should inform Gem Equities, yes? My guess is Braden changed his mind because of what Orlikow said” (Ex. 133). (Braden refers to Smith.) [ 67 ] At this point the Plaintiffs considered the non-statutory Secondary Plan they had been working on as almost complete. Marquess testified that by December 2014, he believed that the Plaintiffs were close to completing a plan that could be made public. Doney did not disagree with this characterization of where matters were at by the end of 2014.

Doney confirmed that much of the information missing from the Appendices of the Secondary Plan could be quickly cut and pasted in from various sources which were already identified. [ 68 ] On December 18, 2014, Doney emailed Shenback and Robinson explaining his opinion that a non-statutory Secondary Plan was compliant with the 2009 Council directive. Robinson replied to this email saying, “Orlikow indicted in the meeting we had with him that

his expectation is that the Parker Lands plan will be a statutory plan. If there is disagreement or differing

interpretations of this, it should be clarified with Councillor Orlikow in writing.” Doney replied that “we should be directed to P&D to do so, rather than by the ward councillor” (Ex. 139). 2015 [ 69 ] Marquess testified that as of January 2015, the Plaintiffs were behind on their desired timeline, but nonetheless hopeful that they would be able to have occupancy in their Parker Lands development by 2016. [ 70 ] On January 1, 2015, Doney wrote to Shenback indicating that they needed to know which process, statutory or non-statutory, Orlikow wanted them to use for the Parker Lands (Ex. 151). [ 71 ] On February 9, 2015, Smith provided a Briefing Note to the Acting Director of PPD indicating that Orlikow wanted the Plan approved as a by-law, and the “merits of this type of approval compared to endorsement as Council policy, should be considered further.” (Ex. 157 p. 3) Doney’s opinion remained that a non-statutory plan was consistent with the original resolution.

The Plaintiffs were not made aware of this debate about what type of plan would be required. [ 72 ] On February 19, 2015, Bird sent Doney an email with the 8 th draft of the Master Plan and indicated that it was the Plaintiffs’ expectation that it would be a final draft. At this point, work on the plan had been underway for almost a year. (Ex. 164) [ 73 ] In April of 2015 GEM learned that the City wished to acquire a portion of the Parker Lands by expropriation for construction of a City retention pond. The Plaintiffs objected to the expropriation and a hearing was held with respect to same.

A determination of that issue was not received until November 2015. Following that decision, in January of 2016 City Council approved expropriation of a portion of the Parker Lands (Ex. 177). [ 74 ] On July 17, 2015, Doney met again with Orlikow about the proposed development.

Doney reported to Smith and Veitch after the meeting that Orlikow indicated that the densities were too high, that planning of the Parker Lands was premature and affecting the value of the expropriated land, and again, that he wanted the Parker Lands approved as a statutory plan (Ex. 180). [ 75 ] A few days later on July 20, 2015, Doney emailed Smith responding to concerns raised by Orlikow.

Doney expressed his opinion as a planner that Master Plans are non-statutory and that while a Master Plan may add value to the land, the site was already designated as an MRS in Complete Communities (Ex. 181). [ 76 ] Orlikow and Smith then met and on July 25, 2015, Orlikow emailed Smith to thank him for meeting and stated that “I want to confirm that I do not support the proposed development.

The density, lack of public space, lack of connectivity, uniformity of density types to area, traffic impact and lack of relation to the BRT and other adjacent lands are just some of my concerns” (Ex. 183). [ 77 ] In response to this email, on July 31, 2015, Smith replied to Orlikow that: Following our recent meeting, I’ve asked for a peer review of the file, draft Master Plan and associated PDO . My two Principal Planners, James Veitch and Brett Shenback, have been tasked to do this review. They will report back to me in early September.

I, like you, need to be confident that the plan is integrated with all the other moving parts, both on site, and on the adjacent lands. I will keep you apprised of the review. Thanks again for taking the time to meet with me on this project and for your commitment to getting this Plan right. (Ex. 184) [ 78 ] Marquess testified he was not made aware of these meetings with the Councillor or the peer review. There is no evidence to suggest otherwise. [ 79 ] Doney testified that he had been asked to slow down the pace of his work on the Parker Lands project, and that he had done so.

He also testified that he was not aware of why a peer review was arranged for the project that he was in charge of, or why he was replaced as the planner assigned to the development. He presented as somewhat offended or annoyed by this turn of events. He testified that no one in PPD had ever expressed dissatisfaction about his work on developing the Plan with the Plaintiffs. No witnesses from the public service identified any issue with Doney’s work on this project or otherwise. Shenback also confirmed on cross-examination that he had never previously undertaken a peer review of a Secondary Plan.

Veitch said that he had been involved in a very small number of peer reviews out of the 900 or so applications PPD receives each year. [ 80 ] The Plaintiffs maintain that the Secondary Plan produced in August 2015 (Ex. 192, 225 and 578) was effectively ready to be put before the appropriate committees and Council for approval. Marquess and Doney both testified that there was some content to be added to some Appendices, but that just involved copying and pasting from prepared sources such as the City website.

Doney also confirmed, both in testimony and in writing, that this Plan had already been revised in accordance with the comments provided by other city departments (Ex. 214). [ 81 ] On September 1, 2015, Bird emailed Doney stating “I sense we’re really getting close to the end…. we’ve been working with the City on this for a year and a half!” (Ex. 193) [ 82 ] On September 4, 2015, Shenback wrote to Doney stating that Smith “met with you and I several weeks back and advised that we significantly reduce our involvement in the planning process until our internal review is completed” (Ex. 195).

Doney later defended himself to Smith stating that the process had been moving much slower than other development plans (Ex. 221). [ 83 ] On September 10, 2015, Marquess emailed Smith to advise him that he believed they had finished the Secondary Plan and DASZ, and indicated that he wanted to

schedule some open houses. Marquess also inquired as to whether Orlikow had scheduled his own Parker Lands open houses without the Plaintiffs’ knowledge. (Ex. 198)

[ 84 ] On September 14, 2015, the results of the peer-review of the Parker Land plans were shared internally with Smith. The fact that the review had been done was still unknown to the Plaintiffs.

The review concluded that while there were some formatting issues, the “actual policy language is good and was generally supported by TAC” but also notes that “Councillor input into the plan to date limited, going public without an appropriate level of comfort from the Councillor not recommended.” (Ex. 199 p. 1 and 3) [ 85 ] Marquess testified that GEM was not asked to fix any formatting issues following this peer review, and that the formatting had been determined by Doney. Doney confirmed that he had written sections A and B of the Secondary Plan and that he and GEM had collaborated on

section C. Doney had not been consulted as part of the peer review of his work, and he never saw the document produced as a result of that review. Doney acknowledged some formatting challenges in the exchange of documents between the City and the Plaintiffs, as they were not operating with the same word processor. [ 86 ] The results of the peer review were never shared with the Plaintiffs. [ 87 ] On October 1, 2015, Marquess emailed Smith to say that it “has been 24 months since I first contacted you on the rezoning for this piece of land. That is way too long. What is the hold up?

We rezoned Fort Rouge Yards in 9 months from start of process to approval from City Council” (Ex. 227). That same day, Smith replied to Marquess suggesting that “[a]s for timelines, it may be due in large measure to the number of draft plan iterations, which I believe now is the 11 th or 12 th ” (Ex. 227 p. 4). Smith did not mention the meetings with Orlikow, the peer review, or direction he had given to Doney to slow down. [ 88 ] On October 1, 2015 Smith advised Marquess that he had always had the option of scheduling an open house on his own (Ex. 209).

Marquess testified that he understood that open houses would be scheduled for the developer and the City to attend together and answer questions. [ 89 ] That same day Orlikow met again with Smith, Veitch and Shenback. Meeting notes from that date express concerns that the City will “get hammered” on expropriation and that Orlikow is “not pleased with what he has seen”. The planners’ notes indicate that they “need Counc. Orlikow strategy.

How does he get to community committee?” and “We can give J.O. language for motion Parker on hold” (Ex. 212). [ 90 ] Also on October 1, 2015, Kiernan was appointed as Director of PPD. At that time he was supplied with a Briefing Note from Smith which was authored by Veitch with respect to the Parker Lands process.

It outlined Orlikow’s concerns with the proposed development including “increased value of lands.” (Ex. 211 p. 4) When Veitch provided this Brief to Smith on October 1, 2015, he wrote, “I did not mention the piece about the valuation of the land potentially going down if we put the plan on hold” (Ex. 213). [ 91 ] On October 6, 2015, the City’s then CAO, Doug McNeil (“McNeil”), emailed Smith and Kiernan to advise them that Orlikow wanted Kiernan to be the overseer of the development of these lands, and Orlikow wanted PPD to prepare the Secondary Plan while having the developer pay the costs of required site servicing and engineering studies (Ex. 216). [ 92 ] On October 16, 2015, Smith, Veitch, Shenback and Doney held a meeting about the next steps with the Parker Lands.

The notes from this meeting indicated that Doney “was to slow down but did not” and “we are off track with a plan we do not want.” Smith testified that he meant exactly that. Marquess testified that he was not advised of these concerns. [ 93 ] On October 17, 2015, an email is sent from Doney to Veitch and Shenback.

He was concerned that Smith may be getting asked why there was a completed draft Master Plan and advised that it had been 22 months since the start of the planning process which “shows that the process is moving along quite slowly when compared to the pace of planning other major redevelopment sites and precincts” (Ex. 221). [ 94 ] On October 20, 2015, Doney wrote to Veitch offering the opinion that it would not look good if the planners were to “sit on” the comments from the other departments, but that “giving them to Gem Equities may not be the best move either because, if we were to do that Gem Equities could conclude the plan can be presented to the public.” Doney stated that “we are largely in control of the public engagement process because Gem Equities wants the City (and perhaps MB Hydro) to be a part of it.” He added that “of course” the City should not encourage public engagement until the expropriation hearing conclusions were made available, there was a price for the expropriated land agreed to, and Orlikow had signed off on this approach (Ex. 222 pp.1 and 2).

In his testimony, Doney confirmed that he had advised the Plaintiffs to wait to do public engagement until such time as certain issues had been resolved. [ 95 ] On October 27, 2015, Marquess followed up on Smith’s email asking for comments on the Plan as promised since September and responded that GEM had been following a process with the City planner which had necessitated the iterations of the Plan.

Marquess also asked for some clarity with respect to the Master Plan and PDO, public engagement, and for the process to approval by Council (Ex. 226). [ 96 ] Smith responded to Marquess on October 30, 2015, and copied Kiernan and others. In this email he advised GEM that the Plan required approval as a statutory Secondary Plan, and outlined the process to get the Plan before council (Ex. 227). GEM was advised that the Master Plan and the PDO could be considered at the same public hearing at CCCC and that GEM could proceed with public engagement.

They suggested, however, that the Plaintiffs’ presentation boards should be provided to the City for review prior to any open house (Ex. 227). [ 97 ] On November 12, 2015, Shenback sent a meeting request to Smith and Orlikow indicating that Orlikow was wanting to meet (Ex. 231). [ 98 ] On November 23, 2015, the Ulyatt Inquiry Report into the expropriation of the Plaintiffs’ lands for the retention pond was released and made findings that the City had been “secretive, uncommunicative and non-consultative” and, “[f]urthermore, when the Objector, upon learning of the City’s plans, pursued discussions at the highest level of the City’s administration, he did not receive a truthful answer” (Ex. 230 p. 2). 2016

[ 99 ] Notwithstanding the report, City Council again voted to expropriate the land from the Plaintiff, 6165347 in January of 2016. [ 100 ] On February 2, 2016, Bird emailed Doney following up on GEM’s inquiries of September 2015. He asked again for the City’s comments on the Secondary Plan. He advised that they needed the comments on the Traffic Impact Assessment (“TIA”) so that they could commission a new TIA factoring in elimination of the newly expropriated land from their site maps. [ 101 ] On February 10, 2016 the Plaintiffs held their first public engagement open house.

Doney attended this open house. [ 102 ] In mid-March 2016, Marquess emailed Shenback asking yet again for the City’s comments on the Secondary Plan (Ex. 241). As a result, the City planners met internally (Ex. 242) and on March 29, 2016, Shenback emailed the Plaintiffs with the feedback on the draft Secondary Plan and copied Smith, but not Doney (Ex. 244). Shenback advised the Plaintiffs that they needed to change the formatting of the Plan to that used for the Master Plan for Bishop Grandin Crossing.

Marquess testified that since Bishop Grandin was based on the FRY plan, it would have been his preference to use that format from the start, however, they had been advised to use a different format by Doney in April 2014. GEM did not want to change the format at this stage. [ 103 ] At that point Doney was still distributing the Plan to the various departments for feedback and he had advised Robinson that from his perspective nothing further was required with respect to the PDO. Robinson advised GEM of that by email and also answered several questions on procedure.

With respect to the difference between an Area Masterplan and a statutory plan he explained that the difference was primarily in the amendment process (Ex. 247). [ 104 ] In May 2016 Orlikow wrote to the CAO inquiring about whether there is a drainage plan for Parker Lands to make sure the forest was not drowned out. The Water and Works department indicated that there was no updated plan. [ 105 ] On June 6, 2016 there was a meeting involving Smith and Shenback indicating that GEM wanted to make their application in a couple of months.

The notes indicated the Premier’s Economic Advisory Council support and that servicing had been reconsidered. There were concerns noted as coming from the ward Councillor about not wanting a fence around the retention pond and there was a notation to “keep Glen on the project” (Ex. 253). [ 106 ] On June 9, 2016, Doney, Shenback and Platt met with GEM to plan the second open house. It was noted that an ecological study was underway and would be ready for the open house.

The notes also indicated that maybe a project management was needed rather than a new planner. [ 107 ] On June 14, 2016, there was a meeting between Marquess and Smith and where Smith advised that Platt had been assigned as the new City planner on the project. Marquess thanked Smith for his assurances that matters would be moved along and obstacles (if any) removed. [ 108 ] On June 20, 2016, Platt contacted Doney and Shenback for input into how he should proceed, and on July 18, 2016, Platt emailed the Plaintiffs a chart of possible timelines for Council approval of their Plan.

The email estimated four months for the Secondary Plan to move through the approval process (Ex. 258). Platt explained in his testimony that some of these timelines had already passed and that they were just intended to give GEM an idea of the process. He did not specify separate timelines for the DASZ. [ 109 ] On July 18, 2016, there was a meeting between GEM and Platt. The notes indicate that 11 or 12 versions had been done with Doney and that Doney had worked on the PDO because of the TOD nature of the development.

There was also reference to the area Councillor wanting to save the environment in the area and discussion about greenspace, Hurst Way and the upcoming open house. [ 110 ] In August 2016, the Plaintiffs held their second open house which Doney and Platt attended. It was described as a success.

As GEM had been unable to reach agreement with Orlikow, or a group known as the Parker Wetlanders on the issue of the forest, they arranged for a representative from an environmental consulting firm, EcoLogic Consultants Ltd., to attend to make available their findings on the ecological significance of the site. [ 111 ] On the suggestion of Platt, GEM sent a notice of the open house and their ecological study to Orlikow. In response, Orlikow contacted Smith and a meeting was held between Smith, Platt and Orlikow.

It was reported back to the public service that Orlikow wanted to see no development adjacent to the Humane Society, a tree buffer between the development and the tracks including a walking path, a linear park system rather than the block proposed, and a force main rather than a gravity fed system to preserve the trees. It was noted that GEM was trying to meet with the Councillor about these issues. [ 112 ] At that time Platt also sent an email to GEM advising them to submit their Secondary Plan for approval prior to submitting their DASZ (Ex. 268).

The reason given was “that it is possible that Orliko will make some drastic changes to the Plan during the approvals process [sic]” (Ex. 268 p.1). [ 113 ] September 9, 2016 GEM met with Platt and Donna Beaton (“Beaton), Park Strategic Planner, and Rodney Penner (“Penner”), another planner with the Parks Division of PPD, to discuss the forest issues. Penner is noted to have stated that 20 acres of forest was needed to make the park worth saving, otherwise develop it.

It was agreed that a study would be done to base the decision on better information. [ 114 ] On September 15, 2016, GEM met with Robinson, Beaton and Platt and discussed Orlikow’s position. The notes of that meeting indicate that “package SP and ZBLA in one hearing may be a good way to do things. Opposition will only have one chance instead of two” (Ex. 275). [ 115 ] The next day GEM met with Orlikow and reported to Platt that they thought it went well and that they could get the Councillor on side with their plan (Ex. 276).

GEM was optimistic that the green space issues had been resolved. [ 116 ] In September Doney and Platt were also noted to be researching densities for the purpose of the PDO and noted that the “sweet spot in Winnipeg was 8 stories” (Ex. 273). Notes at that point also indicated expected excavation dates of summer 2017 or fall/winter of

2017. It was pointed out by GEM at a September 28, 2016 meeting that costs and interest rates were rising (Ex. 279). The question was raised whether Orlikow could be brought into the process. [ 117 ] On October 4, 2016, there was a meeting between Orlikow, Platt, Penner, Beaton and other members of the public service. Despite Penner again indicating that there had been no study, and 20 acres was needed to preserve the forest, the decision was made to require that four acres of forest be preserved on the Parker Lands and the City would try to acquire other forest in the area. The meeting notes indicate that Orlikow and Platt were going to meet with GEM about this new position. A

summary of the discussion was provided by Beaton to Orlikow for approval, in response to which the Councillor offered further direction on a number of issues. [ 118 ] On October 4, 2016, Platt emailed Orlikow. He indicated that he and Robinson were meeting with GEM the next day and that GEM was “obviously unaware of our direction to preserve a portion of the forest”. The email asked if he could communicate his direction to GEM prior to the meeting (Ex. 283). [ 119 ] On October 5, 2016, there was a meeting held between Platt, Robinson and GEM.

The Plaintiffs indicated they were aiming for 1,740 units and they would like to meet with the Councillor to determine his position on that. Robinson also undertook to work on the PDO with an underlying TOD zone. There was no mention in the meeting minutes of any discussion about the forest (Ex. 284).

Later Beaton asked Platt if the topic of the park came up at the meeting and he responded that he and Robinson avoided the discussion (Ex. 286). [ 120 ] On October 7, 2016, Platt wrote to Smith: Robinson and I are caught in a dilemma related to the Councillor wanting to limit densities at a TOD site (Parker Lands) for non- planning related reasons.

That is, the Councillor appears to feel that giving property rights to build above ~6 stories would increase the value of the Retention Pond land, which is being valued as part of the expropriation. (Ex. 290) [ 121 ] Meanwhile on October 6, 2016, GEM provided PPD with traffic, biophysical and servicing reports (Ex. 287). Marquess testified that at this point, roughly 15 out of the 20 buildings planned for the site were over six storeys. Precluding buildings over six storeys would have significantly reduced the total number of units on site.

GEM was not advised of the Councillor’s expressed concerns regarding building heights or his direction regarding the forest. [ 122 ] On October 12, 2016, Platt organized a meeting to be held in Smith’s office (Ex. 292). Later that afternoon Platt emailed Smith and copied Robinson saying “Braden, see attached… Let me know if you need additional content (re: additional detail, questions to be answered etc)”. The email shows “161012 Issue

Summary.pdf” as an attachment (Ex. 291). That

Summary was not included in exhibits filed at trial. [ 123 ] On October 13, 2016, there was a meeting held between Orlikow, Robinson, Platt and Smith. The meeting notes state at the outset, “value determined at time of sale, not in accordance with a plan approved after sale”. They then go on to indicate that FRY should be done before this starts. That the Secondary Plan and PDO will not come at the same time.

The notes also say that there should not be a wall of tall buildings, that massing is the issue, phasing is important and Orlikow is to have a meeting with GEM to discuss the park (Ex. 293). [ 124 ] On October 17, 2016, there was a meeting involving GEM, Orlikow and Platt to discuss densities and green space. Another meeting was held on October 25, 2016 between GEM, Robinson and others from the public service, including Beaton to discuss the forest. Also in late October, GEM was advised that the road access to the development would be a two lane rural cross section.

Marquess and some City planners from the Traffic Division expressed that they felt this would be insufficient to handle the traffic in an out of the development and would pose a significant problem for the development plans. [ 125 ] At the suggestion of GEM, in December 2016 a forest walk was held with the public service in an effort to understand and resolve the forest classification issue.

Also in December of 2016 the 12 th version of the Secondary Plan was prepared to accommodate Platt’s requests for new formatting. [ 126 ] On December 23, 2016, Marquess wrote to Platt and copies several others at the City: For clarity we are not providing design alternatives until we have a meeting to understanding [ sic ] this new classification system just proposed yesterday. In the three years we have discussed the park issue we have had three different classification systems put forward by the City. Initially the land was all classed as grade A habitat.

Then we had an area that was considered the best of the grade A habitat. Now the areas we were told were the best of the grade A habitat has changed and some of these areas aren’t the best of the grade A habitat and new areas now appear that are better, while old “best” areas are not as desirable. It is so confusing, it is hard to describe what was best is now not best but other areas which were not best are now best. I have spent thousands upon thousands of dollars on environment assessments and reports from qualified individuals and companies on this piece of land.

Their assessment of the site has not supported the previous City views on this land and based on a conversation with them yesterday afternoon they are even more perplexed by this new classification system.

GEM has spent countless hours and thousands of dollars in consultant fees in the last two and a half years discussing what areas the City would like to keep as greenspace and the City’s perspective continually changes as evidenced by your map of yesterday. This process of the City changing their minds every six months and sending GEM on a wild goose chase to produce new site plans to incorporate the latest whim of a park location has to stop and is going to stop from GEM’s perspective. (Ex. 310) 2017 [ 127 ] In January 2017, another version of the Secondary Plan was prepared.

Marquess testified that GEM was increasingly confused about what the City wanted. GEM also sent Platt six options for the park location in an effort to resolve that issue (Ex. 318). [ 128 ] On January 11, 2017, Platt sent an email to Smith, Robert Galston (“Galston”), Beaton and Shenback. The email stated, “see attached document for

summary of recent events related to the Parker lands project…” (Ex. 315). Attachment “170111

summary.pdf” was not filed as an exhibit in these proceedings. [ 129 ] GEM’s planner, Bird, also left his employment in early 2017 and the Plaintiffs then retained private planning firm Richard Wintrup to complete the planning applications for the project. Both John Wintrup (“Wintrup”) and Michelle Richard (“Richard”) had formerly been employees of the City’s PPD. [ 130 ] Also at that time in early 2017, Platt suggested that GEM submit a DASZ “pre-application” in order to get feedback on their plan (Ex. 317). Marquess testified that this was the first time he had been advised of a pre-application option.

He was amenable to that suggestion. [ 131 ] On January 20, 2017, there was a meeting of Platt, Robinson and Galston and two representatives of GEM.

Notes from that meeting indicated that the new TOD zone was now in effect and there was a short to do list to finish the Secondary Plan and the DASZ pre-application (Ex. 319). [ 132 ] On February 17, 2017, Doney and another City staff person received an email from an Acting Senior Appraiser in the LVAC department, which handles expropriations, asking for current planning developments on the site (Ex. 324). [ 133 ] On February 23, 2017, a meeting was held between Orlikow, Robinson and Platt.

A number of issues relating to the Parker Lands were discussed and it was noted again that the Council minutes said the Secondary Plan must be completed first. [ 134 ] On February 27, 2017, there was a meeting between GEM and the public service including Robinson and Platt. The topic was largely the TOD zoning. [ 135 ] On March 6, 2017, Robinson suggested that GEM submit their DASZ pre-application.

It was submitted on March 17, 2017, seeking approval for 1,792 units on the site (Ex. 332). [ 136 ] A meeting of public service staff including Robinson and Platt was held on March 24, 2017 to discuss viability of the TOD area and to consider lowering the densities.

Mention was made to set up a meeting with Shenback and Smith to discuss the Parker development. [ 137 ] On April 7, 2017, an email between City planners about the DASZ pre-application indicated as an action item that Robinson was to “[p]ut together MSWord document containing bullet points from the TOD Handbook which suggest the Parker Lands is not a TOD site.” It was also indicated that a meeting was to be set up with Orlikow, and that Platt was to produce a new version of the model with three-story buildings (Ex. 344). [ 138 ] Marquess testified that in addition to densities, around this time PPD started to express concerns that the site was isolated, and therefore should be automobile centric.

This, in his view and that of Richard, was completely contrary to the transit-oriented plan for the site. [ 139 ] On April 19, 2017 there was a meeting between Orlikow, Robinson and Platt. Meeting notes state that “motion for land swap indicates SP [secondary plan] must be done first” (Ex. 348). [ 140 ] On April 20, 2017, the public service engaged in an internal discussion about the design of Hurst Way.

The Land Development Services Coordinator noted that while the design for a rural road and ditch had already been approved “it would be in the City’s best interest to carefully review the cost of the redesign vs. the impact of having to demolish this new road later” based on the needs of the Parker Lands development. (Ex. 349) The Plaintiffs were not involved in, or advised of, this discussion. [ 141 ] On May 5, 2017, Robinson wrote to the Plaintiffs outlining the public service’s feedback on the DASZ pre-application.

The feedback included an indication that the Secondary Plan must be fully adopted prior to the DASZ being submitted for review (Ex. 359). [ 142 ] The pre-application feedback also characterized much of the site as “neighbourhood medium density” and limited the densities proposed by the Plaintiffs. The feedback indicated that PPD would only support building heights greater than six storeys for the three buildings immediately adjacent to the rapid transit station, whereas the site plan proposed by the Plaintiffs sought 15 buildings greater than six storeys.

Marquess testified that this effectively limited the maximum densities to approximately 730. (Ex. 707). The feedback recommended that GEM purchase Hydro land for future expansion of Hurst Way. Marquess testified that PPD was aware that Manitoba Hydro would not sell to GEM. [ 143 ] On May 17, 2017, Marquess wrote to the public service indicating that, per Robinson’s request, GEM was providing a list of

traffic questions. He expressed frustration that they had been waiting a year for the traffic plans on the area (Ex. 364). [ 144 ] On May 24, 2017, Platt emailed the Plaintiffs indicating his strong recommendation that the draft Secondary Plan needed to follow the template provided in February of 2017 as the public service did not support it as proposed. [ 145 ] On June 7, 2017, Orlikow emailed a proposed green space Expropriation Motion to Kiernan and Smith for their assistance in drafting and suggested that they meet to discuss it.

Beaton made a few comments in response, including whether they should concern themselves with the developability of the rest of the land, and suggested that perhaps a meeting would be beneficial (Ex. 370). [ 146 ] On June 12, 2017, Snelgrove followed up with Zoning Development Officer, Ludwig Lee (“Lee”), about a fill permit he had submitted the prior week. This application was submitted to Development and Inspections, supervised by Grady. Lee responded that his review on it was “pretty easy, but my supervisor has asked me to put this on hold at the moment”.

Later that day, Lee asked GEM for some changes to the application and further information. Lee did not respond to GEM as to who advised him to put it on hold. [ 147 ] On June 14, 2017, Platt provided a memo to Smith and Robinson with a subject line “Withholding a Permit (Charter)”. He attached s. 246 of the Charter and advised that removal of vegetation did not require a permit, but that grading or moving earth onto a property did.

He set out means by which the public service and Council could delay responding to the permit application and advised that “it should be noted that when an application is withheld, the applicant may be entitled to compensation (264.3.b)” (Ex. 372). [ 148 ] On June 19, 2017, Beaton emailed a number of concerns with respect to the fill permit to other public service departments including Platt and Robinson.

She stated that there did not seem to be a process to prevent a permit being issued even when a development plan had not yet been approved, but suggested that the concerns be provided to Grady (Ex. 442). [ 149 ] On July 11, 2017, the Plaintiffs were advised that their fill permit was being put on hold until the Development Agreements have been finalized (Ex. 410 p. 6). [ 150 ] Robinson testified that normally planners do not involve themselves in permit applications for the stockpiling of fill , but in this case the City planners were worried about the damage to the trees by grading.

He testified that there were no valid planning reasons to delay the permit, so he and his colleagues turned their mind to conditions they would recommend with respect to a fill permit. Robinson prepared the City’s response with respect to these conditions and requested a grading plan. The fill permit was issued with conditions in late October 2017. [ 151 ] Also on June 19, 2017, there was a meeting held at Orlikow’s request between various members of the public service, including Platt, Robinson and Kiernan, and Orlikow.

The notes are titled “Parker Hurst Way” and it is noted among other things that “Biggest rationale we have for limiting density is traffic limitations” and “we don’t know what existing capacity is for new units” (Ex. 375). [ 152 ] On June 21, 2017, Richard emailed Orlikow for feedback on the forest options provided by GEM. She referred to their meeting of June 12, 2017 and provided maps of the forest area. [ 153 ] Platt also emailed Orlikow on June 21, 2017 about the fill permit.

That day Robinson also expressed concern to Grady that having grading completed within a year was unrealistic. [ 154 ] On July 3, 2017, Marquess emailed Platt and Orlikow indicating that GEM was going to start clearing trees as per the maps provided by Richard.

Orlikow responded that he preferred they waited until the Plan was approved (Ex. 385). [ 155 ] Becoming obviously frustrated with the process, on July 10, 2017, Marquess wrote a letter to both McNeil and Mayor Brian Bowman outlining the efforts the Plaintiffs had made in the planning process to date and stating that they would: …be making an application for a developer led (as per Council direction) secondary plan and DASZ (subdivision and rezoning).

We expect that these applications will be processed and scheduled for a concurrent hearing as afforded through law, specifically through the City of Winnipeg Charter. (Ex. 387) [ 156 ] Also in mid-July 2017, protesters attended to the Parker Lands and prevented the clearing of trees planned by GEM to allow for soil sampling and surveying on the site. The Plaintiffs allege that the City was aware of this planned protest and interfered by instructing the police not to remove the protesters.

I accept the testimony of Marquess that he was advised by a Sergeant with the Winnipeg Police Service that the police were told by the City not to intervene, however, who gave that instruction or the truth of the statement made by the officer was not established.

Marquess testified that GEM made Freedom of Information and Protection of Privacy Act requests for additional information about the City’s involvement which were denied (Ex. 423). [ 157 ] As a result of police unwillingness to intervene in the trespassing, the Plaintiffs sought and obtained a civil injunction to have the protesters removed. [ 158 ] On August 3, 2017, Marquess, Zywina, Richard and Wintrup met with McNeil, Jack, Smith, Kiernan and Platt in response to the Marquess letter of July 10, 2017. Attempts were made to work out areas of disagreement and move forward with the Plan.

Richard was at the meeting and testified that it was agreed by McNeil and Smith that the two applications would proceed concurrently. [ 159 ] On August 16, 2017, Marquess raised the issue of the suspension of the fill permit with Kiernan by email (Ex. 410 p. 1) and on September 15, 2017 Grady wrote to Kiernan that “[t]his is beginning to escalate now that the courts have ordered the protestors off the land” (Ex. 417). [ 160 ] On September 19, 2017, Kiernan emailed Marquess to indicate the City would “get the permissions moving but we have some restrictions” (Ex. 418).

Platt then sent an email to Smith on September 20, 2017 wherein he referred to “claims” from the Plaintiffs that

they spoke with Kiernan about the fill permit (Ex. 419). The evidence of Kiernan and Grady was that their concerns with the fill permit was primarily that they did not have a grading plan.

After one was provided the permit was issued. [ 161 ] Marquess testified that the plan was to stockpile and not grade the fill, although that was contradicted on cross-examination by correspondence to GEM’s lender indicating that they anticipated having it 35% graded when the fill was brought in. [ 162 ] On October 23, 2017, the fill permit had not yet been issued and Marquess wrote to Kiernan that the “inability to accept the fill material from Nelson River is costing me $4,000/day” (Ex. 435). At this point, Marquess had started copying his legal counsel on his communications with the City, including this one.

The public service and Marquess had a meeting on October 25, 2017 and a fill permit was issued a few days later. Kiernan testified that it was issued only once they had received the required grading plan. [ 163 ] By December of 2017, the parties had still been unable to resolve the issues with respect to the forest or green space in the development.

As a result, in addition to the input of Richard and Wintrup, GEM hired Jennifer Keesmaat (“Keesmaat”), a former Chief Planner from the City of Toronto, to conduct a peer review of the Plan and to make recommendations. [ 164 ] In December 2017 the Plaintiffs prepared a further draft of their Secondary Plan and DASZ (Ex. 475). In this iteration of the plan, Keesmaat suggested changes to the greenspace and inclusion of more townhomes and fewer single-family homes, thereby bringing the total unit count from 1,742 to 1,918.

On December 18, 2017, Keesmaat attended a meeting with City representatives and presented her recommendations (Ex. 476). 2018 [ 165 ] On January 12, 2018, the Plaintiffs formally submitted their Secondary Plan application (Ex. 485).

The application did not request approval as a non-statutory plan. [ 166 ] In early 2018, based upon the recommendation of Platt, the Plaintiffs also undertook additional public consultation in an online format to draw the public’s attention to the changes in the greenspace portion of the proposal. [ 167 ] On January 26, 2018, Platt wrote to Kiernan to tell him that the First Reading Report for the Secondary Plan had been prepared by him and Smith (Ex. 495). Platt also noted that “Robinson and I have been steadfast with GEM that we will not be processing the DASZ until the Secondary Plan is adopted.

The Councillor has also communicated this to GEM. Regardless, we anticipate a DASZ application shortly” (Ex. 495 p 1 and 2). [ 168 ] On February 9, 2018, the Plaintiffs submitted their DASZ application (Ex. 500). [ 169 ] On February 13, 2018, Platt emailed Smith and advised him that the review of the Secondary Plan had “uncovered many issues” and suggested “as a last resort, [to] ‘recommend rejection’” (Ex. 501). [ 170 ] On February 15, 2018, Platt made a presentation to City staff with respect to the Plaintiffs’ Secondary Plan and DASZ.

On a slide titled “Issues” Platt listed some of the issues as: residential density, drainage, fill and forest protection. (Ex. 503). The presentation included options, among which was to recommend rejection at First Reading (Ex. 503 p. 28). The Plaintiffs were not included in, or made aware of, this presentation or the First Reading Report which had been formulated. [ 171 ] It was the evidence of Richard and Wintrup that First Readings usually proceeded as of right with the public service rarely ever recommending against it.

Platt testified that he had never before recommended against First Reading of a secondary Plan, and Shenback said that he had only seen it once or twice, but could not say when. [ 172 ] On February 22, 2018, an email from a City Zoning Development Officer to Robinson and copied to Grady indicated “I know you’re still trying to figure out if we can move forward with this DASZ application” before listing five detailed concerns of her own with the application (Ex. 509). Robinson replied that “[w]e were expecting to prepare the PDO, with their input – not the other way around”.

At this stage the PDO had already been reviewed by the public service at both the pre-application stage and the peer review (Ex. 184 and 227). [ 173 ] The Plaintiffs were not made aware that the public service was considering rejecting both applications without a First Reading. [ 174 ] On February 26, 2018, Marquess wrote a four-page letter to Kiernan, again outlining his concerns with the process.

Despite his obvious frustration at that point, the letter stated that it was his “preferred course of action to work collaboratively with members of the Public Service” (Ex. 511). [ 175 ] On March 2, 2018 Grady refused to accept the Plaintiffs’ DASZ application on three grounds: (

a) that it did not comply with the zoning by-law which reads; Transit-Oriented Development (TOD)

(9) The Transit Oriented Developed (TOD) district is intended to facilitate mixed use development at a scape and density exceeding all other districts. These sites are intended to be adjacent to rapid transit stations with a council endorsed local area plan in place to guide development. (

b) that there is no Secondary Plan approved by council; and (

c) only a limited portion of the site which you are proposing to rezone to the TOD district is adjacent to a rapid transit station. (Ex. 516) [ 176 ] Marquess testified that this was the first time he was told that too much of the site was too far away from the rapid transit station

to get the TOD designation. [ 177 ] Grady’s letter indicated that the appeal body was the SPC. At that time the SPC was chaired by Orlikow. [ 178 ] On March 14, 2018, the Plaintiffs wrote to the City Clerks to indicate their wish to appeal the rejection of their DASZ (Ex. 520). [ 179 ] On March 16, 2018, Platt emailed the Plaintiffs to advise that comments had been received on the Secondary Plan application, but that the planning group “hope[s] to resolve as many issues as possible in advance of preparing our First Reading report” (Ex. 521).

Marquess testified that the planning group did not ever reach out with respect to what those issues were, or how to resolve them, in advance of First Reading Report, or advise GEM of their recommendation to reject at First Reading. At trial Platt testified that it had been his intention to try to work out problems in advance of First Reading, but he was unable to say why that did not happen. [ 180 ] On March 23, and April 2, 2018, Marquess wrote detailed letters to Kiernan outlining his concerns with the course of events (Ex. 519 and 527). There was no reply to these letters.

Kiernan testified that by this time the matter was already in the hands of lawyers and that he saw these letters as motivated by litigation the Plaintiffs were planning. [ 181 ] On April 3, 2018, the senior negotiator for LVAC, the department handling expropriation and land acquisition transactions with GEM, inquired whether PPD had any concerns about the sale of City owned lands to the Plaintiffs. Robinson responded that: “…the City is hoping to preserve as much of the existing forest as possible.

Currently, the developer is only required to provide 8% dedication….it would be desirable from the City’s perspective, to see more of the forest preserved. Consequently, the Urban Planning Division sees the subject City lands as a potential bargaining chip to acquire more of the forest”. (Ex. 529) [ 182 ] Gordon Chappell (“Chappell”), an administrator in PPD, replied to the above email from Robinson that “your comments have gone beyond Planning matters. Please provide a revised response based on Planning issues only…” (Ex. 529).

At trial, Smith conceded that bargaining of this sort is not a planning consideration. Robinson did not provide an explanation or justification. [ 183 ] On April 6, 2018, Platt emailed Marquess to tell him that PPD was still working through issues and that he expected “that we will be providing you with feedback in advance of us submitting a Report to Council” (Ex. 531). [ 184 ] On April 9, 2018, Platt sent an email to Smith, and copied Robinson, indicating “[w]e have identified ~225 separate issues with the Proposed Plan”.

The email outlined constraints of the site, including isolation, and stated that “we have new policy suggestions for the following” including phasing, building heights and density, among others (Ex. 539). Marquess testified that these issues and new policy suggestions were not provided to the Plaintiffs. [ 185 ] Not having received any feedback, Marquess sent a final letter to Kiernan on April 9, 2018 outlining a number of plaintiff concerns (Ex. 532).

No response was provided for the same reason. [ 186 ] Also on April 9, 2018, the Plaintiffs attended a meeting of the SPC intending to appeal the rejection of their DASZ. At that meeting, the Plaintiffs requested that Orlikow recuse himself.

The appeal was therefore adjourned as it was determined that without the Chair the committee did not have quorum. [ 187 ] On April 13, 2018, counsel for the Plaintiffs wrote to Kiernan suggesting that the Plaintiffs would essentially agree to any and all terms of the City in order to have their applications approved (Ex. 543). [ 188 ] On May 2, 2018, the City legal department responded to counsel for the Plaintiffs indicating that the City was willing to accept the DASZ for processing if the Plaintiffs were to abandon their appeal (Ex. 551).

The Plaintiffs did not agreed to abandon their appeal citing the potential for further delay (Ex. 552). However, despite the Plaintiffs’ wish to proceed, the appeal of the rejection of their DASZ was not heard. Instead, Smith indicated to the committee that the public service had decided to accept the application for processing (Ex. 556). [ 189 ] On May 11, 2018, the Plaintiffs re-submitted their DASZ. [ 190 ] On May 14, 2018, Lee wrote the Plaintiffs to indicate that “the file cannot be distributed to all departments for review at this time.

The District Planner Michael Robinson has stated he will be making some recommendations for revision.

One copy of the submission has been forwarded to Michael Robinson at this time” (Ex. 560). [ 191 ] The following day Marquess replied to this email copying their counsel and City legal services characterizing Lee’s email as the second rejection of the DASZ (Ex. 564). [ 192 ] On May 14, 2018, the City’s Development Applications Coordinator, Michelle Hammerberg (“Hammerberg”), emailed the Plaintiffs to suggest that they pick up their application materials because a “Letter of Authorization” was required from all landowners (in this case the City) and had not been provided (Ex. 567).

Marquess testified he had previously discussed receiving the City’s Letter of Authorization with Chappell and did not expect this to be a problem.

He was not challenged on this evidence. [ 193 ] On May 28, 2018, Lee again emailed the Plaintiffs and asked them to retrieve their remaining materials “and make the revisions that the Land Development Branch and District Planner Michael Robinson requested” (Ex. 567). [ 194 ] Marquess replied to the emails from Hammerberg and Lee the same day, copying Robinson, Grady, Kiernan and Smith, among others, accusing them of attempting to thwart their application (Ex. 567). [ 195 ] On June 7, 2018, the Plaintiffs filed an Application for Mandamus in the Court of Queen’s Bench asking the Court to order that the application be considered concurrently, immediately and on a non-statutory basis (Ex. 571).

[ 196 ] On July 17, 2018, Platt internally circulated the draft First Reading Report for the Parker Lands in which the public service was recommending that the Secondary Plan not receive First Reading (Ex. 184). [ 197 ] In a follow up email on July 28, 2018, Platt referred to “boatloads of issues” with the Secondary Plan (Ex. 584).

These issues had not been outlined to GEM. [ 198 ] On August 24, 2018, the First Reading Report recommending rejection was submitted to Jack who signed off on it (Ex. 595), and on September 4, 2018, SPC accepted the public service recommendation to refuse First Reading of the Plaintiffs’ Secondary Plan (Ex. 600). [ 199 ] After rejection of the First Reading, the Plaintiffs’ consultants prepared a critique of the First Reading Report (Ex. 599). [ 200 ] In late August and early September 2018, the Court heard the Plaintiffs’ mandamus application for an order compelling the CCCC to consider the applications (Ex. 571).

On September 19, 2018, Grammond J. granted the Plaintiffs’ application for mandamus. Her decision, 6165347 Manitoba Inc. et al. v.

The City of Winnipeg et al. , 2018 MBQB 153 , at paras. 21 and 22 , noted that the City was unable to point to “…any authority to support the suggestion that a ‘secondary plan’ must be limited to a statutory context.” She also found that there “…is no requirement that a secondary plan by-law be enacted prior to a zoning application being accepted” and that the Plaintiffs had a clear legal right to have the application heard and the City has an obligation to deal fairly with the applications (Ex. 607). [ 201 ] On September 19, 2018, the Plaintiffs wrote to McNeil in an effort to engage him in the process.

At this time, the City and the Plaintiffs were still unable to agree on the plan (Ex. 612). [ 202 ] On October 9, 2018, Smith and

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