Judge upholds majority of Capital Pointe ruling

Judge says he has no cause to interfere in board’s findings in terms of safety

A Regina Court of Queen’s Bench decision has altered little in terms of the Capital Pointe project.

Last month, Justice Timothy Keene heard arguments from lawyers for the City of Regina and Westgate Properties pertaining to a decision from the Saskatchewan Building and Accessibility Standards Appeal Board. The board’s decision, rendered in late August, found the Capital Pointe site was not unsafe as alleged by the city, and further provided three next-step options for Westgate to choose from: fill the hole, build the tower, or construct permanent shoring to ensure long-term safety.

Westgate opted to build; the city opted to ask the Court of Queen’s Bench to overturn the decision.

The city argued the board’s conclusion regarding the safety of the site was unreasonable. It further argued the board was wrong in delegating decision-making to Westgate in terms of the three-option order, and that it shouldn’t have designed such an order to begin with — at least not without asking for input from the parties involved.

Keene reserved and returned this week with his judicial review decision, upholding the bulk of the board’s findings.

Given the fairly narrow scope of what is effectively an appeal matter, the judge found he had no cause to interfere in the board’s findings in terms of the safety aspect. He also disagreed with the city in its arguments that the board had wrongly “sub-delegated” decisionmaking to Westgate, and that the board provided options that were outside of its power to make.

Where the judge did agree with the city was that the board “offended natural justice or procedural fairness” through its order by failing to allow either party to make submissions on the variation order.

Keene directed the matter return to the board on just that single issue.

“Ultimately the question I must answer is was the Board’s decision reasonable?” Keene wrote in his 31-page decision pertaining to the safety issue. “I find that I am not persuaded by the City that the decision reached was unreasonable. The Board’s decision is supported by the reasons that, while relatively brief, nevertheless meet the tests of being transparent, justifiable, intelligible and within the range of acceptable outcomes. The reasons are also adequate and therefore procedural fairness in this regard has not been offended.”

But Westgate counsel Neil Abbott said he is hopeful his client and the city can work something out without the need to return to the board — or potentially to the Court of Appeal, should the city opt to pursue the matter in court.

“We hope this ends the matter, that there’s not a further appeal to the Saskatchewan Court of Appeal on that point because it just seems to be endless litigation that we don’t want to have ...,” Abbott said. “It’s always better to speak rather than always to litigate because at the end of the day, it just costs money and time for everybody.”

Abbott said his client is pleased the court upheld the board’s findings that the site was not in an unsafe condition when the city issued its order to comply.

Abbott said whatever the city might decide to do from here, the two sides will have to find a way to live with each other.

“My clients own the land and they’re not going anywhere,” he said.

No one from the city was immediately available for comment.