Three members of the last Kelowna city council will have their account of a controversial land-use change more closely examined by the courts as part of an ongoing legal dispute playing out in Vancouver.
Coun. Luke Stack, former Coun. Ryan Donn and former mayor Colin Basran have all submitted affidavits in an ongoing civil suit against the city about a July 2021 decision to designate eight waterfront properties in Kelowna’s Lower Mission neighbourhood as future parkland.
Now B.C. Supreme Court Justice Lisa Warren has decided they will be cross-examined on those statements.
“I am satisfied that I should exercise my discretion to order cross-examination of Mr. Donn, Mr. Stack and Mr. Basran on the issues of their motivations in supporting the eight-lot proposal and whether they were influenced by Mr. Donn in this respect,” Warren said in a decision posted online Thursday.
“This would include, but not necessarily be limited to, cross-examination on any communications they had with Mr. Donn on the topic of designating Watt Road properties as park.”
The judge dismissed concerns raised by the City of Kelowna, which opposed the cross-examination — the city said doing so would produce unreasonable delay or generate unreasonable expense.
The lawsuit launched by owners of two Watt Road homes — Murray Braaten, Lyle Braaten, Norma Sebestyen, Sheila Braaten and Terry Gold — asks that the decision to re-designate the eight properties, instead of the originally planned two properties, be reversed.
They allege, council acted in bad faith and was swayed by Donn, who was fuelled by “personal animus” against area resident Michael Neill, who is not a part of the case.
The lawsuit is built on email messages and taped phone calls. A request for text messages between the three fell flat, with the city claiming they have no such records.
The conversations that underly the claim of “bad faith” started July 10 when a Watt Road resident, Steve Dobler, sent an email to mayor and council asking the city to reconsider designating any of the Watt Road properties as future parkland.
He urged the city to engage in further research and study of the matter before adopting even the two-lot proposal. Then, at 9:12 p.m. on the same evening, a copy of his email was sent directly to Donn.
“One minute later, Mr. Donn replied to Mr. Dobler’s email. His reply read ‘Yeah parks for the public are such a terrible idea!!'” Warren wrote in her decision.
“A few minutes after that, Mr. Donn sent a second email to Mr. Dobler that read ‘I’ll be asking to expand the park designation suggestion based on this email. Thanks for the email.'”
The emails between Dobler and Donn were forwarded to Neill and on July 12, 2021, about half an hour before the council meeting commenced, Neill sent an email to Donn referring to Donn’s first email to Dobler as “round one” and his second email to Dobler as “round two.”
“He also referred to Mr. Donn’s comments as sarcastic and accused him of showing “total disrespect,'” Warren wrote.
A few minutes later, Donn replied by email to Neill saying, “Yes I was happy to support the staff recommendation of the two (meaning the two-lot proposal) but seeing that isn’t enough for the residents is concerning and will shift me to push for more in this afternoons meeting.”
At the council meeting, Donn recommended the designation expansion and at a public hearing on Oct, 26. 2021 and on Jan. 10, 2022, council adopted the bylaw to adopt the Official Community Plan with the eight properties re-designated.
Before the October 2021 public hearing, however, Terry Gold, one of the people who launched the lawsuit, called Donn and recorded their interaction.
He expressed concern about the eight-lot designation and Donn replied that he had been “fine with two” lots but that after the “fever pitch” caused by (Michael Neill) he’d wanted to just “finish this now.”
“Later in the call, Mr. Donn made comments that the petitioners say indicate that his motion at the July 12 meeting to expand the park designation was grounded in his personal animus for Mr. Neill.”
Warren wrote in the decision that Donn referred to Neill as “the person who has launched six campaigns against the city in history on different topics (and is) launching a campaign on (the Watt Road issue) saying two (lots) is not enough.”
Donn then said, “I need (Neill) to shut up.”
Later in the call, in reference to Mr. Neill, Donn was recorded saying “you have a great neighbour that I would say kind of screwed you on this one, to be honest with you, because (I) was totally fine with the two,” meaning the two-lot proposal.
He continued and said he was “standing by” his decision and that “most councillors aren’t going to vote to shrink the size of a park,” and, “it’s political suicide to do that.”
The accuracy of the phone transcript is not in question by Donn. In Stack and Basran’s affidavit, they claim to not have known that Donn had any animus toward Neill and say they did not feel they were influenced.
When the cross-examination will happen has yet to be determined.
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