Grenade tossed into Maple Pool case

The Supreme Court judge in the Maple Pool Campground case has tossed a legal and financial grenade into the
proceedings.
And last night Courtenay City Council was holding an ‘in-camera’ session with the press and public excluded to
consider what to do next.
In a judgment handed down by Justice Robin Baird in Vancouver, an application by two campground residents to be
added as defendants in the case of the City of Courtenay versus site owner Jin Lin was granted.
And that could be highly significant, as the lawyer representing the two, Lee Mayzes, is building her case on
constitutional grounds. She argues the residents’ Charter rights would be violated if the City wins its case and
enforces its zoning bylaws, depriving vulnerable people of their homes.
The case is no longer as straightforward as it once seemed to be, and could continue for months or even years until it
is resolved – and rack up legal bills for City taxpayers way in excess of the six-figure sum already incurred.
And as well as allowing residents Greg Wesson and Ross Osmond the right to intervene, the Judge has also ruled
they are entitled to costs to date.
In Justice Baird’s reasons for judgment, he says that while many years ago Maple Pool operated as a campsite in
the more traditional sense of a vacation location, “the evidence suggests pretty plainly that, in recent times – and
certainly since well before the defendant (Jin Lin) purchased it – it has become a de facto low income housing
project.”
He adds: “I gather that if the campsite is shut down, the homeless population in Courtenay will double overnight.”
The bylaw cited by the City in its injunction against the site came into force in 2007 – “some 12 years after the
defendant purchased and took over operation of the campsite.”
That bylaw prohibits the occupation of mobile homes or trailers as dwelling units or sleeping quarters anywhere in the
municipality except sites specifically zoned for the purpose. Maple Pool did not have such zoning.
There has been much debate – even among elected officials – about whether the council’s legal action was actually
intended to force the closure of the campground and result in the effective eviction of the tenants. Some suggested a
lesser impact was intended, especially since the Council invited Lin to submit a rezoning application.
But the judge appears to be in no doubt. He notes the City is seeking six orders against Lin, and they include not
only “to permanently cease using the property as a campground” but also “to remove from the property all
campground sites, all mobile homes or recreational vehicles, and any related infrastructure including pads and
cables, sewer, power and water outlets.”
Further, another order sought by the City would require the removal of all accessory buildings, the office
accommodation, washroom building and laundry facilities” – effectively stripping the site bare.
Justice Baird adds that according to the materials filed, the City’s motivation for seeking the court orders was “to
remove the tenants from the property and keep them safe from the dangers of living within the 200 year floodplain of
the nearby Tsolum River.”
But the residents applying to join the case “do not consider themselves to be endangered by the Tsolum River – the
flooding of 2009-10 was inconvenient and messy, but nothing more,” the Judge notes.
He goes on to analyze the legal issues to determine whether new defendants should be allowed to join the case on
the grounds the enforcement constituted and unjustifiable infringement of their rights under Section 7 of the Canadian
Charter of Rights and Freedoms.
Section 7 concerns “the right to life, liberty and security of the person, and the right not to be deprived thereof in
accordance with the principles of fundamental justice.”
The Judge notes the City had argued the residents had no legal interest in the enforcement of the bylaw, as their only
connection to the property was through rental contracts with the owner.
To which Justice Baird responds: “My view, however, the order sought by the City clearly affects the applicants’ vital
interests by denying them their customary place of residence, and by forcing them to abandon or remove the homes
that they have occupied on the campsite for years with the acquiescence, if not the approval, of the City.
“Moreoverthe City claims to be pursuing this litigation to protect the safety of the tenants of the campsite, making
untenable any claim that the tenants’ rights and interests are not squarely engaged.”
The Judge notes the City suggested allowing residents to join the case would be neither just nor convenient; it would
run up extra costs and not only delay a decision on the matter but “hijack the proceedings” by widening their scope.
But Judge Baird rules “their participation is necessary to ensure that all matters in the proceedings may be effectively
adjudicated upon” and, in any event, “they have a direct interest” in the proceedings.
For the two residents, Mayzes said she was very pleased with the ruling to allow them to join the case.
The Judge had been “spot on” in his summation of the issues and the Council’s position had been clearly spelt out for
the public to see in the reasons for judgment, she suggested
“The Council has not been particularly forthcoming about what they were out to do,” she said. “In listing the six
declarations and orders being sought by the City, it is clear they are looking to rip the place apart and get rid of
everybody. They are out to destroy this place.”
She hoped the City Council would finally appreciate the seriousness of the issues and drop the case.
The City’s chief administrative officer, David Allen, confirmed to the Echo the matter was to be discussed further by
Council at last night’s in-camera session.
pround@comoxvalleyecho.com
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