Lawyers ask court to fine City of Winnipeg $2M for contempt

Lawyers for property developer Andrew Marquess have asked a judge to issue the fine to the City of Winnipeg for defying an August court order.

City and councillors on community committee were found in contempt of court in August

Developer Andrew Marquess and his lawyer Dave Hill say the city should pay over $2 million in fines for remaining in contempt of court. (Bartley Kives/CBC)

Lawyers for property developer Andrew Marquess have asked a judge to fine the City of Winnipeg more than $2 million for defying a court order.

The request to the court says the city has not acted swiftly enough to deal with a contempt of court order issued against it in August 2019.

"If the government can ignore the courts without consequence, why can't everyone else?" the motion to the court says.

The August contempt ruling found the city has ignored an order to consider a developer's plan to build new residential units.

In October 2018, the city was ordered by Justice Candace Grammond to consider the development plan by Marquess, the owner of Gem Equities.

Marquess has been trying for years to get approval for a development called Fulton Grove, on 47 acres of land (known as the Parker lands) in Fort Garry, near the soon to be opened leg of the southwest rapid transit corridor.

Legal battles over the Fulton Grove development could cost the city millions in fines and costs. (Gem Equities)

City planners, though, have refused to allow the proposal to proceed, claiming it doesn't comply with zoning rules around developments near rapid-transit stations. The city also 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 2018, Grammond ordered the City Centre Community Committee to hold a public meeting the following month to consider the development plan proposed by Marquess.

The committee held the meeting, but reaffirmed the city's position that the plan required a council vote before going to a hearing, and further recommended that city council not vote on the proposal — which would in essence stall the project.

That led to Grammond's August contempt of court ruling, which said the city and the committee had intentionally violated her order.

That, said Dave Hill — the developer's lawyer — is the kind of contempt being expressed lately by U.S. President Donald Trump.

"I mean, we're talking about Mr. Trump and being above the law. The City of Winnipeg seemingly decided not to follow Madam Justice Grammond's decision, when they even asked for a clarification after she gave it. And she gave them a clarification," Hill said.

"So there was no misunderstanding about what the order was."

Hill says it appears senior administrators believe they "are a body onto themselves" that have the discretion to make decisions as they choose.  

"They don't have the discretion to ignore a court order," Hill said. 

$37K per day in fines

Hill filed a motion to the court last week which reviewed the options for sentencing in a contempt ruling. Those range from fines to imprisonment.

The request acknowledged "incarceration is generally reserved as a penalty of last resort," and instead asked Justice Grammond to fine the city $250,000 and $37,500 per day the city remains in contempt of court.

When the motion was filed with the court on Oct. 23, the city had been in contempt of court for 49 days, creating the prospect of a fine totalling $2,087,500.

To determine the amount the city should pay, the legal team representing Marquess looked at precedents where municipalities had been held in contempt of court (Hill knows of only two such cases in Canada) and found a fine levied against the city of Toronto in 1984 of $100,000 and $15,000 per day. 

The fines would be paid to the court, while Hill is asking for his client's legal costs to be paid by the city.

The city, which has recently retained lawyers outside its own legal department to handle the case, filed a motion Friday saying it had "acted diligently, without delay and with utmost regard for the court."

The city "held an honest belief they had in fact complied with the court's order" to hold a meeting on the development plan, the motion says.

The lawyers for the city have also filed a notice of motion asking Grammond to reconsider her own contempt order, and a request that if a fine is found to be appropriate, it be set at no more than $5,000.

'Emergency meeting' needed 

Grammond's decision in August to hold the city in contempt prompted city councillors Kevin Klein and Shawn Nason to ask Mayor Brian Bowman to hold an emergency meeting of city council.

They wanted a review of the case, and of a growing list of legal actions involving the city's property and planning department.

Councillors Kevin Klein and Shawn Nason called for an emergency meeting of city council in August to address the city's contempt of court issue and other legal concerns. (CBC)

The request was denied. But with the recent motion to seek millions in fines from the city, Klein says the issue has become not only a legal one, but a financial one as well.

"Do we think we are so above the law that we don't have to listen to a Court of Queen's Bench Justice? If we had simply followed her direction [and] had the meeting, this would be over," Klein told CBC News.

Klein sees folly in the possibility of paying millions in fines to the province of Manitoba.

"We are continuously coming out … saying the province owes us more money," Klein said. "So, with the money they are giving us, we are now gambling it away."

Spokespeople for the city and for Mayor Brian Bowman declined to speak about the case as it was before the courts.

With files from Cameron MacLean