by Hilary Beaumont
In the end, it will likely be a court and not the city that decides the fate of the St. Patrick’s–Alexandra property.
Last week, the province’s highest court, the Nova Scotia Court of Appeal, sided with JONO Developments in the company’s bid for the school property.
Long battle for the school site
The St. Patrick’s–Alexandra saga began in 2011, when the city used common practice rather than written policy to dispose of the school property. The common practice was to solicit proposals from non-profit groups in direct competition with for-profit developers for the substantial property in the city’s rapidly gentrifying north end. Fully 45 points out of 100 were awarded based on financial capability and financial offer—putting cash-strapped non-profits at a competitive disadvantage.
Sure enough, JONO Developments was the winning proponent for the school property, with 89 points out of 100. Three non-profit groups from the neighbourhood surrounding the school applied and came in last.
At first, city council voted to sell to JONO, but the north end groups said this was unfair because city staff didn’t follow their own written policy. City council then took a series of conflicting actions: it rescinded the sale to JONO, then rescinded its written policy, then re-approved the sale to JONO.
The community groups then sued, and in September, 2012 Justice David MacAdam ruled in their favour. Last year, JONO launched legal action on two fronts—it appealed MacAdam’s decision, and sued the city seeking costs for the municipality’s screw-up.
As that process chugged along, council voted to give the community groups a second chance to put together a winning proposal for the property. The three groups amalgamated under the North Central Community Council and, with financial help from the province, organized consultations with north end residents and produced a proposal they said was financially sustainable.
Last week’s ruling
In an interview nearly a year ago in November 2013, the lawyer representing the community groups, Ron Pink, said, “If [JONO’s] appeal is successful, then it’s all for naught—the whole proposal goes out the window.”
This week, Pink said he hadn’t expected the appeal court to side with JONO. Through the legal proceedings, Pink had this read on things: Of the three appeal justices, one judge was difficult to convince, another judge seemed to be in favour and another judge seemed to be in-between, but Pink thought they had a good chance.
In last week’s ruling, however, two of the three judges sided with JONO.
“I was disappointed of course, but that’s the way litigation works, there’s winners and losers,” Pink said Wednesday.
The case rested on two matters: whether the city satisfied a duty of fairness to the community groups who applied for the property, and whether they had legitimate expectation that the city would follow its written process. Another issue was whether the city contravened its own charter by selling the property at less than market value.
“They had different interpretations of the law about what the duty and legitimate expectation was,” Pink said of the two judges who sided with JONO. “And they also had a different view about what market value was.”
Two of three appeal judges agreed with JONO’s lawyer Mick Ryan that the city met legitimate expectations by following common practice rather than written policy. Pink argued the opposite: that legitimate expectation should come from what is written on paper.
“It’s a real blow to public interest groups,” Pink said. “It’s very controversial, I think.”
“I think it changes the law, which is problematic from my perspective,” he continued. “It develops a less stringent test than has been applied previously. It means that governments can do things—I think it means they can make promises and not necessarily follow through with them.”
Now the proposal the north end groups put together is, as Pink said, out the window.
Appeal to Supreme Court of Canada
The community groups’ only legal option at this point is to make an application for the Supreme Court of Canada to hear their case. But that court only hears cases of national importance and turns down more than a hundred cases each year.
And if they lose, the groups will have to pay the legal fees out of pocket.
Margaret Casey—a member of the north end groups that have been fighting for the St. Patrick’s–Alexandra property since the beginning of the mangled process—said they can’t afford those fees.
The groups have met to discuss the matter, and the only reason they would apply to the Supreme Court is on principle—because they don’t believe the process was fair.
“It’s a pretty compelling force that’s pulling us in one direction whereas the finances are pulling us in another direction,” Casey said Thursday.
They need to decide soon. Pink says they only have 60 days to make the application.
If the groups decide to go in that direction, Pink plans to argue the issue of public expectation and whether government follows through on promises is nationally important.
Casey doesn’t believe they have a good chance of clearing the first hurdle of a Supreme Court of Canada application. There’s a high chance the court won’t hear the case, she said. “The criteria are very, very strict.”
Working with JONO
The groups are also exploring the option of negotiating with JONO Developments, but Casey said they are not optimistic about that option.
Since their original proposal, JONO has said it would put aside 10 percent of the resulting development for community use.
“We certainly appreciate that offer,” Casey said. However that amount of space is nowhere near enough to meet the groups’ overwhelming need, she said.
“Is it worth talking to them about some sort of compromise? Yes, of course it is, but we certainly understand their position. They’re not in the business of community service.”
Still, she said that is one option they are considering.
The Halifax Examiner reached out to Ryan, the lawyer for JONO Developments, but he was out of town on another legal matter.
The Examiner also called Joe Metlege, president of JONO Developments, but he hasn’t yet called back. This story will be updated if we hear back.
The city’s legal department is reviewing last week’s decision and is preparing recommendations to council.
Council will discuss the matter at Tuesday’s council meeting. That discussion will likely take place in camera, city spokesperson Tiffany Chase said. After council hears what the legal department has to say, they can vote on what to do next.
That next step could be to uphold the court decision and abide by the original contract council entered into with the developer: sell the school property to JONO for $3 million.
That would mean one of the biggest mess-ups by the City of Halifax in recent memory is finally winding down.
Possibly the only good thing to come out of this story is that the old written policy for disposal of surplus properties, which wasn’t that clear to begin with, has been thrown out.
The city has spent well over $1 million covering maintenance costs for the school property, though some of that cost may be recouped through the $3 million sale.
The community groups owe JONO Developments $30,000 in costs as a result of the appeal, and they continue to struggle for space in the rapidly gentrifying north end.
JONO has lost time and money fighting the city, but the company appears to be moving forward with their original plans.
All of this because the city ignored its own policy. Or, depending on how you look at it: because the city didn’t continue to ignore its own policy.