'If anyone should be complaining, it should be my client,' says lawyer for company behind Capital Pointe
The gaping hole in the lot at the corner of Victoria and Albert in Regina sat silent Tuesday as, across the street, lawyers for the landowner and the city argued before a judge over the reasonableness of a decision giving a developer more time to build there.
Justice Timothy Keene opted to reserve his decision, saying he would issue it as soon as he could. At one point he noted he had some 1,000 pages in legal briefs to read.
The city wants the Court of Queen's Bench to quash a decision that gave three options to the project's lead developer, Fortress Real Developments, on what to do about the site, including building Capital Pointe by 2022.
'Unreasonable' to call site safe, city says
According to the city's legal team, that decision from the Saskatchewan Buildings and Accessibility Standards Appeal Board was "unreasonable."
The judge twice asked lawyers if he could send the decision back to the board for further consideration, and the lawyers agreed.
The board concluded the site was not unsafe. Christine Clifford, a lawyer representing the city, took issue with a line in the board's decision that reads, "The testimony of experts representing Westgate Properties Ltd., the City of Regina, and retained by the Appeal Board, all agreed that the property was not in an unsafe condition."
"The evidence before the board was that there was a hazard," Clifford said in court Tuesday's court, noting some expert reports filed raised concerns about safety.
Clifford said the decision on the site lacks "justification, intelligibility and transparency." She said there is nothing in the actual decision that shows board members considered the definition of what is an unsafe site.
Sahil Shoor, one of the property owner's lawyers, argued the appeal hearing lacked a transcript from the initial board hearing and accused the city's lawyer of trying to expand the scope of the appeal record.
'We don't have a free pass'
The city also argued the board did not have the power to authorize construction on the site and was incorrect in giving the property owners three options on what to do with the site.
"We don't have a free pass. The board gave us a choice of guns, knives or fists —that's it," Neil Abbott, lawyer for the property owner said in response to the city's criticism.
He explained wording of the decision makes the developer beholden to do work and move through the process in such a way that satisfies the City of Regina.
"My client can't lift a shovel if they city says don't," Abbott said.
"Everything in this order is subject to the City of Regina's jurisdiction. If anyone should be complaining, it should be my client because they're the ones that are now subject back to the beginning, so to speak, to the City of Regina having to approve all these details. "
Last month, Abbott said the development team intends to build the project.
The fight over the fate of Victoria and Albert ramped up in March 2018 when the city said the developer needed to resume construction or face a legal order to fill the hole.
The city followed through on its word, but the developer filed an appeal, which has resulted in several different stages of hearings.
