SOMBA K'E/YELLOWKNIFE
A judge will issue a written decision on whether city council erred last December when it ruled against a development company's appeal of orders imposed on it by city staff.

Glen Rutland, left, a lawyer representing Granite Ventures during its appeal of two city orders regarding its new 50 Avenue condo building, said administration's handling of the issue was unfair and unreasonable. - NNSL file photo

Justice Shannon Smallwood heard arguments Tuesday from lawyers representing development firm Granite Ventures, a lawyer for city staff and another representing council.

All three sides said if the judge decides Granite's arguments have merit, the appropriate recourse is to have council rehear the case.

At issue is whether a development – owned by Greg Littlefair, Alex Arychuk and city councillor Niels Konge – built at 5604 50 Ave. was treated fairly by city staff, and whether it received a fair hearing by city council went it appealed decisions made by staff.

City staff granted conditional occupancy permits for the 24-unit building last November before the structure's cladding was complete.

People started moving in. Then a fire at a vacant house next door prompted city fire officials to raise the alarm about the lack of siding on the building.

A fire alarm also didn't properly function in the building. Those issues then caused city staff to issue an order that would have forced the building to be vacated.

The order was revoked within hours and replaced with a second order calling on Granite to have someone watching the building for fires until the siding was complete. Faced with that cost and potential fines, Granite sped completion of the siding but also appealed the orders.

Granite is hoping council will reimburse the company for more than $160,000 in costs and legal fees incurred after the city imposed the orders and during the appeal.

The city set the appeal for the last possible day. Appeals like this are heard by city council acting almost like a tribunal with the ability for both sides to provide written arguments, make oral arguments, call witnesses and have those witnesses cross examined.

When the hearing began Dec. 7, the order in question was no longer in place because the siding had been completed Dec. 4. With the order lifted, council ruled in a written decision there was no longer an order to be appealed.

Granite appealed that decision and during Tuesday's court appearance before Smallwood, the lawyers for the company said council's decision was based on a theory that because the order was no longer valid, there was nothing for council to rule on, which prevented the company from having costs reimbursed.

That point was never raised during the hearing. Because of that, the lawyers weren't able to address the theory council relied on for its decision and the company was denied a fair hearing, said Granite lawyers Glen Rutland and another Alyssa Holland.

"The logical conclusion of this is that city officials could make any order, it could be in effect for a month, and then withdrawn before the appeal," effectively nullifying the appeal process, said Rutland.

Holland argued the decision by council removed its own power to hear appeals and shifted power to the very city staff who issue the orders. Kerry Penney, representing city staff, said their position is that the hearing held was fair for Granite.

"It's our submission that this was a very fair, open and impartial process," she said, adding that council had asked during the hearing about the status of the orders and were told they were no longer in effect.

"At that point, it is our position that it was open to the applicant (Granite) to address concerns" about the orders, she said.

After about three hours of legal arguments, Smallwood said she would reserve her decision which will be issued in the future in writing.

We welcome your opinions. Click here to e-mail a letter to the editor.