Somehow, someway, the Capital Pointe saga has found a way to generate more paperwork – but this time it’s not an appeal. It’s managed to drag itself into the record books. The hearing became the first recorded appeal of the Uniform Building and Accessibility Standards Act (UBAS) earlier today.
The only other UBAS appeal – unrecorded – involved a pig farm, and was presided over by the same judge: the Honourable Justice T. Keene.
Tuesday’s hearing, like those that preceded it was technical and often highlighted even the slightest mistake.
Sahil Shoor, counsel for WestGate Properties even argued that a statement saying the excavation was besides a high-rise building couldn’t be proven as it wasn’t in the submitted documents.
“The decision concerns the safety of an open excavation…adjacent to other buildings, including a high-rise office tower. There’s no reference to suggest where this submission comes from, it should be discarded,” Shoor said.
The 14-storey North Canadian Oils Building at the corner of Victoria and McIntyre dominated the view out of the courtroom window.
Such has been the degree to which the two sides have battled over the right to continue the Capital Pointe project, and today was no different.
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The City of Regina argued said the Saskatchewan Accessibility and Building Standards Appeal Board (appeal board) had overstepped their jurisdictional bounds when they gave WestGate three options to proceed – including one that allowed construction to continue.
“The board has no authority to direct what approval the city grants,” Christine Clifford, counsel for the city argued.
“At the very least, the wording chosen by the board allows WestGate to continue use of Albert Street and Victoria Avenue and the adjacent sidewalks until March 30, of 2022,” she continued.
According to Clifford that judicial overstep meant the appeal board’s finding needed to quashed. Unsurprisingly, counsel for WestGate didn’t see it that way.
“There was no error in law by a delegation of power. Remember what’s the decision being appealed? It’s decision whether the site is safe or not. The remedies of the board have nothing to do with the decision,” Neil Abbott argued.
The two sides argued over whether it was safe or not too.
The city called the determination that the site was safe unreasonable. WestGate reminded the judge that all three experts, and the appeal board agreed it was safe at the time of the Order to Comply.
It left Justice Keene in a predicament with a pair of questions to answer: was the appeal board’s decision that the site was safe reasonable, and did their recommendations overstep their bounds?
It was early, but he may have a solution already.
“Could I make an order that this go back to the board, to say look ‘you made a mistake here…you got there right, but the remedies are wrong; redo your work on this,’” Justice Keene asked counsel for both the city and WestGate.
Both parties were reluctant to accept such a solution, but noted he was technically able to do so.
The judge didn’t specifically say that would be his choice, but did mention that he has made similar decisions in past cases.
Keene says he’ll make his decision as soon as possible, but with a 1,000 page report to read through there’s no guarantee it’s coming any time soon; or that this will be the final appeal.
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