Capital Pointe appeal mired in technicalities and delays

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The City argued the board doesn’t have the power to hear the issue; a result of delays in the process that forced the appeal to take longer than 30 days – Jun 18, 2018

It’s been over two months since the City of Regina issued the order to fill the Capital Pointe development — to fill the hole that has dominated the Regina downtown for the better part of three years.

Today, the Saskatchewan Building and Accessibility Standards Appeal Board — commonly referred to as the appeal board — began the appeal hearing.

“As more than 30 days have passed, the board has lost jurisdiction,” argued Christine Clifford, counsel for the City of Regina.

Before they could proceed to the arguments, the board had to acknowledge two preliminary arguments raised by the City.

READ MORE: City tells appeal board Capital Pointe hole is “unsafe” amid calls for the site to be decommissioned

The first, much larger issue, was that of jurisdiction.

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Counsel for Regina argued the board doesn’t have the power to hear the issue, a result of delays in the process that forced the appeal to take longer than the legislated 30 days.

According to the government website:

“Following review, the board can hear the appeal and determine a decision for eligible requests. When an appeal is heard the board will provide a decision in writing within 30 days.”

“[This] shall means compliance with the timeline is necessary,” Clifford asserted.

If found in favour of the city, the decision would end matters before they begin.

“The board has lost jurisdiction. The appeal must end, and the order to fill the will be valid,” Clifford argued, adding that the city would begin the process of filling the hole immediately in that case.

Counsel for Westgate properties disagreed, citing a decision from 2011: Alberta Teacher’s Association v Alberta.

The case has been cited over 1700 times and is frequently used as precedent for extending the timeline of appeal cases.

READ MORE: Capital Pointe developer appeals Regina’s order to fill hole

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“In keeping with the principles of the Supreme Court of Canada, you have the authority to set your own timetables,” argued Neil Abbott, a Toronto-based construction lawyer with Gowling WLG.

“This is not a hearing that can be developed in 30 days,” he continued.

It was an issue that resonated with the appeal board.

“30 days isn’t a lot of reaction time. It’s very difficult,” conceded Helen Christensen, a board member for over a decade.

The board hopes to answer the question of jurisdiction in the coming days.

Meanwhile, proceedings have been tentatively bumped to July 24, when both sides will reconvene in Regina to finally proceed with the appeal hearing.

According to counsel for Westgate Properties, it’s expected to take between two and three days.

By this stage in the project a parking structure was supposed to be nearing completion — slated for July 2018 — but even Westgate admitted it’s far from where they hope to be.

Abbott joked “there’s parking on the ramp,” even acknowledging “hole” is the most appropriate term for the eight year disaster that has plagued the downtown.