City of Ottawa wins Lansdowne case

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By DAVID REEVELY AND NECO COCKBURN, The Ottawa Citizen

OTTAWA — The City of Ottawa has won its legal case with the Friends of Lansdowne with the release Thursday afternoon of a decision that rejects all the Friends' arguments.

The Friends had gone to court to try to stop plans to redevelop the property at Bank Street and the Rideau Canal, claiming the city had violated its own procurement bylaw, promised illegal subsidies to private business, and negotiated the whole thing in bad faith. The plan calls for the city to go into partnership with the Ottawa Sports and Entertainment Group, a consortium of property developers and sports businessmen, to refurbish Frank Clair Stadium for pro football and soccer and build new residential and commercial space across the north end of the city-owned site.

Justice Charles Hackland dismisses each of the Friends' claims, finding either that the Friends didn't prove their point or that second-guessing politicians' political decisions is not the role of the court, as long as those decisions are made reasonably.

"The applicant's arguments ... even if correct factually or as matters of reasonable opinion, do not individually or taken together, amount to bad faith," Hackland wrote.

He wrote the public consultation on the Lansdowne plans was extensive, and so was the city's solicitation of expert outside advice. City council debated the matter thoroughly and made an honest decision, he found. On occasions where city staff presented erroneous or incomplete information to city council, Hackland found it they were the result of honest mistakes and didn't likely make any meaningful difference in councillors' deliberations.

The Friends pointed to a report from consulting firm Deloitte, presented to the city early in the consideration of the redevelopment proposal, which was critical of the prospective deal. The city didn't make it public or present it to councillors, a move the Friends alleged was improper. Hackland disagreed.

"It is conceivable that this report could have contributed to public discussion of the financial aspects of the [Lansdowne partnership] but this topic has been debated in great detail and I do not accept that the failure to release this report dealing with a preliminary proposal was a matter that was likely to have been material to any informed assessment of the [partnership]," he wrote.

He likewise dismissed the idea that the deal amounts to a subsidy for either the development or the sports teams, finding that although the agreement includes components giving OSEG the use of city land for almost nothing, it has to be considered in its totality, not in pieces. It also includes sources of revenue for the city, and risks for the developers.

"[T]his is primarily a question for the City Council to answer as a matter of policy and business judgment and such answer, if arrived at in good faith, is entitled to a very high degree of defence by the court," Hackland wrote.

Finally, Hackland rejected the Friends' argument that the process by which the city considered the Lansdowne deal violated its bylaw on procurement. He acknowledged that the process was confused, but wrote that it was legal — and ultimately, city council can do what it wants within the bounds of provincial law.

Michael Tiger of the Friends of Lansdowne said he's "disappointed. We're disappointed that we even had to go to court on this." The city's decision-making was opaque and undemocratic, he said, and that's not changed by any of Hackland's decision, he said. But Hackland's manner during the June hearings was such that "my sense was this was how he was moving," Tiger said.

The Friends of Lansdowne will have to read the ruling carefully and discuss whether they have any room to appeal, he said.

City council's planning committee chairman Peter Hume, who has done much of the heavy lifting on the Lansdowne file at the political level, said the decision vindicates the city's work.

"Ottawans can be confident that city council was at its best when we made this decision," he said. "It often looked chaotic ... but everything we did has been substantiated."

As recently as Wednesday, he said, he and the design teams on the project met to keep working out details, and it'll be good not to be distracted by the legal case any further. "The public space, the mixed use, it's so cool," Hume said. "I want to be there."

Capital Councillor David Chernushenko, whose ward includes Lansdowne, said he knows many of his constituents will be disappointed with the decision.

"I had always felt, and told my constituents, that the legal process was up to judges ... I'm not qualified to second-guess or even to comment on the wisdom of what the judge has decided," he said. "I am left trying to get the best possible design and the best possible business plan for the taxpayers of this city."

Some of the evidence presented in the hearing, such as that Deloitte report, suggested that the city should have pressed harder, he said. "It doesn't make it look like we are getting the best deal we could."

Nevertheless, Chernushenko said, he doesn't believe there's any prospect of getting city council to reverse the Lansdowne decision, so all he can do is to push "the architects and the OSEG partners as a whole to produce the best possible design ... We get one crack at this in a century."

Roger Greenberg, the lead partner in the developer group, said the decision is what he expected.

"We're not surprised, we're pleased with the decision, and I hope the applicants will reflect very carefully on the words and not just react emotionally to the fact that their argument was not agreed to by about as unbiased and objective an individual as you're going to find in a Superior Court judge. Accept it and let us all move on," he said.

Greenberg said it's too early to determine when construction might start on the project, noting that city manager Kent Kirkpatrick is to bring a "fairly comprehensive" report to council next month. "Until we see the appeal period expire and know what the applicants are going to do, it's probably premature to try to put a date right now as to when shovels will go in the ground," he said.

With the win, "we'll sit down over the next few days and sort out our schedule," Greenberg said. "There's a ton of work ahead of us that needs to go through a normal development process for a very very complicated project."

It may not be quite so simple. John Martin, a Glebe man who wants a different approach taken to the redevelopment, said he's prepared to launch a new court case to try to stop the project.

"We now have information on which way the court went and why, so that provides us with much-needed evidence and direction on how to proceed with our legal challenge, so we'll be filing forthwith, probably Tuesday," said Martin, who has an alternative idea for the site that involves less commercial development and a less expensive stadium renovation.

Martin previously announced that he would file his case by July 22, but then said he was waiting for more evidence. Martin argues his proposal deserved a hearing under the city's procurement bylaw, once he delivered a "substantive objection" to the city's plan.

Hume said the Friends' case was the most substantial legal opposition the city's plan faced, and he hopes the city's energy can be devoted to making the Lansdowne project work, rather than fighting off more legal delays.

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