Court of Appeal 'ambushed' by residents in demolition case

The Court of Appeal this morning ruled against six St Andrew residents who wanted the court to refuse to hear an appeal against the demolition of a $100-million apartment complex in their neighbourhood. 

The objection was filed last Thursday, just five days before today's long scheduled hearing of the appeal.  
In throwing out the objection, the Court of Appeal said it felt ambushed.  

The developers are appealing a 2020 Supreme Court decision that said the buildings at 18 Upper Montrose Road breached their building permits; as well as the refusal to modify restrictive covenants; and a demolition order. 

The residents argued that the appeal was not properly before the court because the developers filed a notice against one judgment, when the matter involved two claims.  

The two claims were, one, an application filed in 2017 by Martyn Lyn and his two children, Melissa and Martyn, for change to the restrictive covenants to accommodate their development. The other case was a 2018 application opposing the changes sought.  

The residents' lead attorney is Emile Leiba from the firm DunnCox, and he argued that the court needed to indicate whether there should have been two notices of appeal consistent with the court rules.  

However, Queen's Counsel Michael Hylton, who is arguing for the developers, said the residents' objection was 'academic' and 'wrong'.  

He said while there was no formal consolidation of the two claims, the Supreme Court had ordered that the two claims be tried together, which happened and resulted in a single judgment handed down by Justice Judith Pusey in January 2020.  

Hylton said when the notice of application to appeal was filed, there was no doubt the application was against both matters.  

The court sided with Hylton and ruled that the residents' arguments had no merit, as the one judgment issued covered both claims.  

FORM OVER SUBSTANCE

Acting Court of Appeal President Marva McDonald-Bishop, who gave the ruling on behalf of the three-member panel, said the issues raised were matters of form over substance and the court had to be mindful of the overall objective of ensuring justice.  

She said the court was also mindful of the developers' constitutional rights and insisted that there was no basis to “chase them away” from accessing their rights to the Court of Appeal.   
Justice McDonald-Bishop also told Leiba that he could have raised the issues during preliminary hearings held before today's hearing of oral arguments.  

She said the late filing of an objection was “really like an ambush”, which Leiba said was not the intention of his clients.  

“I'm comforted by that,” McDonald-Bishop replied. 
The other two judges on the panel are Justices Evan Brown and Nicole Simmons.  
Sarah Hsia, her husband Marvin Gordon, Henderson Downer, Marcos Handal, Una Witter, and Brenda Francis are the residents in the case.  

The Supreme Court had ruled that the Upper Montrose Road neighbourhood was a single-family residential area and that the Lyns failed to convince the court that the character of the area had changed to facilitate the multifamily development. 

On March 11, 2020, the Court of Appeal granted an order for the demolition action to be paused until the case was determined. 

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