Council advised to settle lawsuit over condo project before Coun. Browaty testifies

City council is being advised to quash a decision to approve a North Kildonan condo project in order to settle a court case where a city councillor has received a subpoena to testify.

Councillor said he did nothing wrong when he changed mind about strings attached to North Kildonan development

North Kildonan Coun. Jeff Browaty has received a subpoena to explain how and why he changed his vote on a project in his ward. (Gary Solilak/CBC)

City council is being advised to quash a decision to approve a North Kildonan condo project in order to settle a court case where Coun. Jeff Browaty received a subpoena to testify.

Over the past five years, the city has been embroiled in a dispute over the development of a condo project on Henderson Highway, along the Red River just north of Bunn's Creek.

According to a report published by the city last week, the developer purchased the property in 2012 and asked the city to rezone the property for multi-family use the following year.

When council approved the zoning amendment, the owners of the property to the north, Darrell and Cheryl Pakosh, convinced the Court of Queen's Bench to overturn the city's decision

So the developer — a numbered company owned by Werner and Betty Neufeld — applied to the city again and received approval a second time, leading to a second lawsuit from the Pakoshes.

The neighbours alleged city councillors "committed errors of law, exceeded their jurisdiction and breached procedural fairness" when they approved the zoning amendments, city lawyer Darryl Ferguson wrote in a report to council's executive policy committee on Oct. 11.

These allegations, originally made in 2015, have not been proven in court. They involve the assertion the city failed to follow its own procedural guidelines for approving developments.

Browaty received subpoena

But a new wrinkle emerged this February, when the plaintiffs informed the city and the developer they intended to cross-examine North Kildonan Coun. Jeff Browaty, who originally supported the development with a condition attached — but later moved to strike that condition from the development.

Browaty said Tuesday in an interview he did nothing wrong, but did not dispute he changed his vote on the development. He initially supported attaching strings to the condo-project approval at an East Kildonan-Transcona community committee meeting, but later voted to approve the development without the conditions at executive policy committee.

Browaty's about-face, combined with the rest of the evidence, led city lawyers to pursue a settlement with the Pakoshes and the developer, Winnipeg chief corporate services officer Michael Jack said Tuesday in an interview.

That settlement instructs council to reverse its 2015 decision to approve the condo project and send the developer back to the drawing board.

"The public service's report doesn't allege Coun. Browaty did anything wrong," Jack said. "The city isn't alleging wrongdoing. The city isn't paying anything or is particularly put out by this decision."

Mayor's inner circle rejects advice

City lawyers, the developer and the Pakoshes all agreed to a settlement. But instead of heeding the advice of city lawyers, executive policy committee voted to reject the settlement during a closed-door meeting on Oct. 11.

"Oftentimes when a settlement is agreed to it's an acknowledgement by one or more of the parties to the settlement that maybe something didn't go quite right or that maybe certain rules weren't followed," said Jonathan Hildebrand, communications director for Mayor Brian Bowman, who chairs EPC.

"Executive policy committee, however, has recommended against settling the matter in large part because Coun. Browaty has maintained he's done nothing wrong. If that's in fact the case, there shouldn't be a settlement, and the case should be argued and defended in court."

The settlement now winds up before a public meeting of city council on Wednesday.

Chief corporate services director Michael Jack says no one is accusing Browaty of any wrongdoing. (Gary Solilak/CBC)
Gord Steeves, the lawyer representing the Neufelds, said he believes it's in every party's interest to settle the suit, but added the politicians will have to make up their own minds.

Charles Chappell, a lawyer for the Pakoshes, said he has never seen a settlement proposal have to jump through as many hoops as the one that council will consider.

"Usually, they don't have to go to these extremes," he said.

If council rejects the settlement, Browaty will be called upon to testify to explain how and why he changed his position on the conditions attached to the condo development, Chappell said.

The city's ​Jack said he does not recall a prior instance where a city councillor received a subpoena to testify. He also said it is uncommon for elected officials to reject legal advice.

He said the city does plan to change the way it approves developments to give councillors better instructions about what  and what not to do.

"We are currently undertaking a comprehensive review of our development procedures bylaw," Jack said.

Council is also due to vote Wednesday on a plan to spend $3.5 million to prepare for the reopening of Portage and Main to pedestrians and on a plan to hold consultations before the city creates new regulations for cabs and services such as Uber.


Bartley Kives

Reporter, CBC Manitoba

Reporter Bartley Kives joined CBC Manitoba in 2016. Prior to that, he spent three years at the Winnipeg Sun and 18 at the Winnipeg Free Press, writing about politics, music, food and outdoor recreation. He's the author of the Canadian bestseller A Daytripper's Guide to Manitoba: Exploring Canada's Undiscovered Province and co-author of both Stuck in the Middle: Dissenting Views of Winnipeg and Stuck In The Middle 2: Defining Views of Manitoba. His work has also appeared in publications such as the Guardian and Explore magazine.