THE HISTORY OF THE MAPLE POOL LAWSUIT
Maple Pool Campsite was annexed by the City of Courtenay in 2002. Prior to annexation, the property had for decades operated in its present form, that is to say a campsite with year round permanent residents. Dali and Jin Lin purchased it in 1996, while it was still a part of the Comox Valley Regional District.
At the time the Lins purchased Maple Pool it was a veritable “den of iniquity”, known throughout the Comox Valley as a center of drug trafficking and minor crime. The RCMP attended there on a regular basis. The Lins introduced a policy of zero tolerance for drugs, crime of any kind, and alcohol abuse. Within a very short time they had transformed the camp into a safe haven and community for previously homeless people, many with serious disabilities, both physical and mental. Today Maple Pool is free of drugs and no longer a drain on RCMP resources. It is the home of Dali and Jin Lin and the home of 57 other permanent residents, who are their tenants.
The City of Courtenay accepted Maple Pool
Between 2002, when Maple Pool became part of the City of Courtenay, and 2011 when the lawsuit was filed, the City at no time raised any objection to the use of the property for permanent residence. On the contrary, the City fully recognized the land usage at Maple Pool and both implicitly and explicitly approved of its present use repeatedly in the years prior to launching the lawsuit against the present owners.
As soon as Maple Pool was annexed by Courtenay, the City suggested that the permanent residences there be connected to the City sewage system; this was done. Every year from annexation in 2002 until 2011, the City of Courtenay issued business licences to Maple Pool. Over the course of those nine years, the City of Courtenay issued eight different building permits for improvements the Lins made to the site. During the course of these nine years, the City never once questioned the use of the campsite for long term residence.
In 2005 the City provided oral assurance to a mortgage lender that there were no problems with the use of the campground for permanent residence. In 2007 the City issued a written assurance to a second lender that there were no problems with the use of the campground for permanent residence, referring the lender to the section of the Local Government Act which defines the status of “legally non-conforming” (which essentially means “grandfathering” on the basis that the land usage of the property pre-dated the relevant bylaw, which therefore does not apply to the subject property). On the basis of that written assurance from the City, the lender executed a 1.1 million dollar mortgage and the Lins assumed that debt.
Now, after having effectively facilitated this huge loan, the City seeks to bankrupt the Lins, in addition to making 57 residents homeless.
The flooding in winter of 2009/2010
In November of 2009, the Tsolum River flooded parts of Maple Pool; flooding occurred again a little more than a month later, in January of 2010. Both these floods were caused by improper BC Hydro releases of water and that is beyond dispute. Both were part of a one off situation which the City has ever since sought to portray as chronic.
There has been no flooding whatsoever at Maple Pool since January of 2010; nor has the property ever “nearly flooded” at any time since then, notwithstanding false claims to the contrary by City staff. In the floods of 2009/2010, one lower level portion of the campsite was inundated with knee to waist deep water; that area has not been used for permanent residency ever since. In the remainder of the camp, the floods produced muddy conditions and forced residents to don gumboots, but that was the extent of the difficulties.
The City’s response
City officials nevertheless ordered the evacuation of the residents, over the objections of the latter, who saw no reason for their evacuation.
At the time of the BC Hydro flooding, then City CAO Sandy Gray visited the campsite. He is reported to have been extremely abrupt and impolite with Jin Lin, telling her that she and her husband should never have been allowed to run the campsite business and ordering her to evict all the tenants immediately, at which time Jin Lin counselled Mr. Gray to consider “self-help”. That is to say, she informed him she would not evict anyone and if he wanted residents evicted he should do it himself.
It is said that Sandy Gray never took kindly to anyone questioning his judgement, instructions, or authority, whether the questioners were Courtenay citizens or the elected representatives of those citizens. It is difficult to believe that all the subsequent legal warfare may have stemmed initially from a personal affront to a Texas-sized ego. In any event, we can never know with certainty. But no one has to date discovered the real reason why City Council has pressed on relentlessly for more than four years with a seemingly mad lawsuit. All we know objectively is that every excuse the City has put forward has been discredited.
On October 19, 2010, the City’s solicitors notified the Lins that Maple Pool was operating in contravention of the relevant zoning bylaw. (City Council approved the sending of the letter about two weeks after the lawyers had sent it) The City’s lawyers demanded that the Lins bring Maple Pool into compliance by evicting its tenants. They set a deadline of January 31, 2011 for this mass eviction.
The legal dispute begins
The Lins retained Ansley & Company. From the outset, we understand that Ansley & Company took the position that this matter did not belong in the courts and should be easily soluble with the application of good faith and common sense. Over the course of the next three and a half years, we would all discover that good faith and common sense were commodities unknown to City Hall.
But in late 2010, Ansley and Company received permission from the City’s lawyers to enter into direct discussions with senior City staff, with a view to arriving at an out of court solution. The deadline for compliance or eviction was set back to July 31, 2011.
With the benefit of hindsight, it now seems that the apparently reasonable approach of Courtenay City Hall in early 2011 was cynically predicated on optics. Council quickly realised it would be politically disastrous to evict low income tenants and throw them into the streets in the course of a January blizzard. The new July 31 deadline was undoubtedly rooted in the belief that a mass eviction would be more politically palatable on a balmy sunny day when the newly homeless Maple Pool residents could go tubing on the river and enjoy camping in the woods! And at the beginning, councillors may have thought that their court action would be just a “walk in the park” leading to an expeditious eviction order from the court.
The City flip-flops
Counsel for the Lins held several meetings and teleconferences with senior City staff between January and July of 2011, one of which the Lins attended in person. In retrospect, it seems clear that City staff used these meetings simply to bait a trap for the Lins in order to create a politically saleable justification for litigating the matter and obtaining the eviction order.
Asked if there were flexibility with respect to the July 31 deadline, assuming that discussions were ongoing, the senior staff member involved in the discussions assured the Lins that there was. He stated that the deadline “was not written in stone” and could be put back “if we are continuing to hold discussions and make progress”. Later, this individual denied ever having said any such thing. Over the course of the next three years he repeated this behaviour routinely. At least four individuals on the Maple Pool team can speak of experiences which saw this individual agreeing to various things and then later claiming he had never been privy to any such discussion, going so far as to aver that he had never said “anything remotely resembling” the statements he had in fact made.
The Lins apply for rezoning
The individual acting for the City in these discussions caused the Lins to believe that a rezoning application from them might solve the problem. As a result, during the month leading up to the July 31 deadline, Dali Lin obtained from City Hall the standard form application for rezoning. He sought help from City staff in completing the application, but received no assistance.
Dali Lin finally submitted his rezoning application to City Hall on July 27, four days before the July 31 deadline. We understand from parties familiar with the process that an applicant for rezoning normally will wait at least two weeks for an acknowledgement from the City that the application has been received and will be considered in due course. That acknowledgement is normally sent out by ordinary post.
But the Lins received special treatment.
On the morning of July 28, 2011, just one day after Dali Lin had handed in his rezoning application at City Hall, the Lins answered a knock on their door and were handed a letter from the senior staff member who had encouraged the application. The letter informed the Lins that their application was “incomplete” because it would need a supporting archaeological study, hydraulic study, and “such other studies as the City might require”(a difficult precondition to meet before submitting an application!) as well as about $15,000 in fees.
An incomplete application, said the City’s bureaucrat, is in fact no application at all and “you therefore do not have any application before the City”. Three days to go till the July 31 deadline and the bureaucrat is now denying that he ever spoke of flexibility! In less than two weeks, the City had filed suit in British Columbia Supreme Court. The clear intention behind this City Hall chicanery was to create an appearance that the Lins had done nothing to meet the deadline and the City’s only remaining option was to file suit. For four years now, City spokespeople have been chanting the mantra that council has been waiting forever for some sort of application from the Lins. The story that the Lins had never submitted an application of any kind was an outright lie. The most recent written statement by the new City CAO tweaks that position a bit; the new stance is that the Lins have never submitted a “complete”application!
The lawsuit continues
The City was perhaps surprised that the Lins did not roll over and acquiesce, deciding instead to file their defence in court and do what the proverb says is impossible, that is to “FIGHT CITY HALL”! The filing of a Response to the City’s claim, and various required legal procedures, took much longer than our Councillors had anticipated. The matter could not be scheduled for hearing until October of 2012.
In September of 2012 a joint press conference was held at Maple Pool, addressed by Clive Ansley for the Lins, and Scott Bernstein, a lawyer with Pivot Legal. Mr. Bernstein committed Pivot Legal to intervening in the lawsuit, in opposition to the City, in the event a constitutional question should be raised. Perhaps by coincidence, on that same day the City announced the non-renewal of Sandy Gray’s contract. Shortly thereafter, the City also announced that it would delay its lawsuit for six months in order to allow for discussions between the two sides in the hope of finding an out of court solution.
An out-of-court solution is nominally pursued
A team from each side met in November of 2012. Attending on the City side were Mayor Jangula, Councillors Hillian and Winchester, a senior City bureaucrat, and the City’s legal counsel. Attending for Maple Pool were Dali Lin, a municipal planner, Mike Hamilton, and legal counsel for the Lins.
The agreement resulting from this meeting was that the senior City bureaucrat would work with Dale Bishop, the municipal planner who had volunteered his services on behalf of the Lins. Over the course of the next six months, Bishop and the bureaucrat would work together to formulate a plan which would address Council’s purported concern for the safety of the Maple Pool residents, while ensuring that Maple Pool would remain open.
Bishop and the bureaucrat worked together to develop a model involving, among other things, raising part of the site to meet floodplain requirements and ensure that there would be no adverse hydraulic side effects. Unfortunately, the model they developed could not be run until they obtained crucial data from a study by the City’s engineers. That engineering firm missed a series of successive deadlines, while Bishop and the bureaucrat waited.
Carthage and Rome
In The Decline and Fall of Practically Everybody, Will Cuppy characterized Carthage and Rome in the following terms: “Carthage was governed by its rich men and was therefore a Plutocracy; Rome was also governed by its rich men and was therefore a Republic.”
Our City council has apparently been heavily influenced by Will Cuppy’s logic. Shortly before the six month extension on the lawsuit expired, Bishop and the bureaucrat had not received the required data from the City’s engineers and could not run their model. Therefore the City postponed the lawsuit for a further three months.
As the end of the three month extension loomed, the City’s engineers had missed yet another deadline; Bishop and the bureaucrat still had no data on which to run their model. Therefore the City decided to go back to court and proceed with the lawsuit.
Two diametrically opposed decisions, each based on precisely the same fact situation!
The Lins’ legal counsel changes
At this time, the Lins’s lawyer, Clive Ansley, stepped down from the case because of deteriorating health. The file was taken over by Cameron Ward. Because he needed time to learn the file, Mr. Ward asked the City’s legal counsel for consent to adjourn the case from the date which had been set down. Had the City consented to the adjournment, the matter would have been heard later and neither the City nor the Lins would have incurred the cost of the hearing which was forced by the City on June 27, 2013. Forced to appear on the scheduled date, Cameron Ward asked the judge for an adjournment and the judge granted that adjournment.
The Maple Pool residents retain counsel
At the same time, a new issue and a new lawyer appeared on the scene. Lee Mayzes was retained by two Maple Pool residents who wished to be made parties to the lawsuit in order to argue that their rights under the Charter of Rights and Freedoms were being violated by the City’s actions. Ms. Mayzes also requested consent from the City’s lawyers to add her clients to the lawsuit. Again, consent was refused and Ms. Mayzes was forced to go to court on June 27, as well.
The judge reserved his ruling on Ms. Mayzes’s application at the time of the hearing, but subsequently ordered that her clients be added to the litigation and he assessed costs against the City.
The Court Hearing, June 27, 2013
Available elsewhere on this site are the full transcript of the court hearing on June 27, 2013, as well as the judgement handed down by Mr. Justice Robin Baird on March 13 of this year. The judgement should be read by every taxpayer in Courtenay. The transcript of hearing, while lengthy, also warrants reading by all voters who can spare the time.
During the course of the hearing, the judge at one point told counsel for the City that “I wasn’t born yesterday.” At another point he asked the City’s lawyer what would happen to the tenants if they were evicted. The City lawyer’s response was that the provincial government would take care of them, to which the judge commented that from what he could see, the only action of the Province, with respect to the Comox Valley homeless, has been to send them to Maple Pool.
The City Councillors decided to go back to court
In the wake of the March 13 Judgement, most members of this community assumed that City Councillors would have no choice but to call off the lawsuit and apply themselves to fashioning a constructive solution. Most of us were, to coin a Bush-like term, simply “flaggerbastered” when Councillors instead decided to go back to court once more.
One definition of the word “stupid” is “the tendency to repeat the same actions over and over, hoping each time for a different result”.
The new CAO responded to the Judgement
Shortly after the March 13 Judgement, the new City CAO published a letter setting out the City’s justifications for pushing on with the lawsuit. He argued that there is a very real safety issue and that Councillors have a heavy responsibility to protect the residents from the Tsolum River; that they had been waiting patiently for a rezoning application from the Lins and were “disappointed” that no such application had been forthcoming; and that the City faces huge liability if it allows the continued existence of the Maple Pool community and members of that community should be injured or killed in future flooding.
Councillor Ambler had at one time apparently suffered from nightmares about entire RV’s being swept out to sea in a flash flood, the occupants never to be seen again!
Some of the excuses proffered by David Allen had already been argued before the court and dismissed by the judge. Others are simply spurious on their face.
Allen’s letter argued at length that the safety issue is very real and serious. The problem is that when Allen was making this argument, the City had already had its day in court and had lost, rather spectacularly. Mr. Justice Baird had given short shrift to the safety argument and had brushed it aside as if swatting a fly. Now, after losing the argument in court, the City persists in trying to sell it to the voters.
The CAO’s letter also tries once more to blame the Lins for delay; again the City had relied on that argument in its attempt to obtain an eviction order and the court had already ruled that there had been no delay on the part of the Lins!
The problems with the letter
Our Councillors seem to be saying to us, the Courtenay voters, that Mr. Justice Baird got it wrong and that we should accept the argument he rejected. But we, of course, cannot act as a Court of Appeal and overturn the Baird judgement.
The “liability” argument is spurious on several grounds. It has not been adjudicated by the courts, but it has been addressed by others. Pivot Legal several years ago produced a Legal Opinion for the City saying, in effect, that any theoretical liability for a possible flood that might perhaps occur sometime in the future, maybe, pales into insignificance in comparison to the liability the City would face if an evicted resident were to die from exposure or foul play after being forced by the City to sleep in the streets.
Dick Clancy, one of our founding members, who retired from a 28 year police career involving daily contact with the “mean streets”, says that no one will ever convince him that Maple Pool residents would be safer living on the streets than they would living in their present safe and supportive community, the community which has never been visited by anyone from City Hall except for Mayor Jangula and Councillor Theos.
Despite Jon Ambler’s nightmarish visions of floods on an order calling for the return of Noah and his Ark, the “mean streets” constitute a much greater and much more immediate danger to anyone forced to live on them.
What has the lawsuit cost taxpayers so far?
There has been substantial public “bafflegab and bull feathers” from Councillors Winchester, Leonard, and Hillian concerning the present status of the lawsuit. There has also been substantial outrage from the community over the disclosure by the City that it had at an earlier point in the litigation expended some $120,000 on legal fees. Since disclosing that figure, our Councillors have continued to amass legal bills on the case but now refuse any further disclosure and they are resisting a Freedom of Information demand for these figures.
It is important that the community understand precisely what the City has achieved for the $150,000 it must now have incurred in legal fees, not to mention the costs assessed against the City by the court.
What has the City achieved?
The $150,000 of taxpayers’ money so far used against the owners and residents of Maple Pool has to this point not succeeded in having the merits of the dispute heard by the court. The only things our Councillors have achieved to date are three rulings against them in the Supreme Court of British Columbia.
On the one occasion when the parties appeared in court, Mr. Justice Robin Baird ruled:
- Against the City’s application for an immediate court order allowing the City to evict residents of Maple Pool;
- That the matter would be adjourned to allow Cameron Ward to properly prepare; and
- That the two Maple Pool residents represented by Ms. Mayzes are to be added as parties to the litigation.
What the lawsuit could end up costing the taxpayers
So after our Councillors have expended $150,000 of taxpayers’ money, the court has not yet heard the case on its merits! If the matter continues, both parties will face huge legal bills for things yet to unfold. First, the City wishes to have this dispute settled through the summary trial procedure. The next time the parties are in court the issue will be whether a case like this can be properly handled on a summary basis. That alone will involve lawyers’ fees for the City, for Maple Pool, for the residents who have been added, and for Pivot Legal, the interveners.
Let us assume for the sake of argument that the court will rule, with a constitutional issue to be decided, that the regular full trial process will be necessary. If that should happen, our lawyers tell us the parties may be looking at a thirty day trial, and possibly even a longer one. Should the City lose, it will have to pay the costs for the lawyers representing Maple Pool, the lawyers representing the residents, and the lawyers representing Pivot Legal, all in addition to the huge fees we expect the taxpayers will have to cover for the legal fees payable to the City’s lawyers.
Should the City win and obtain a court order allowing them to evict the tenants of Maple Pool, the City will face a claim against it for several million dollars because it induced lenders to grant substantial mortgages by assuring those lenders that Maple Pool had “legally non-conforming” status and was therefore exempt from the relevant bylaw.
The bottom line is that the $150,000 the City has so far thrown at this lawsuit is only the tiniest tip of the iceberg. If this case goes the distance, the City’s exposure in terms of legal fees is incalculable, but we can say with certainty that it will be huge and will dwarf the $150,000 incurred so far.
What is behind the City Councillors actions?
What is really behind this apparent madness on the part of our current City Councillors? The Allen response to the Baird Judgement claimed the Councillors have no undisclosed agenda and that their only concern is with the safety of Maple Pool residents. We are inclined to invoke the Shakespearean observation, “Methinks thou dost protest too much”. No one has suggested improper motives on the part of our Councillors in the past, but their defensiveness at this time, when there would appear to be no possible rationale for them to continue the crusade, is puzzling.
Their main arguments for an eviction order have already been rejected by the court; their actions are opposed by such an overwhelming percentage of voters that they seem to be inflicting fatal political damage on themselves, yet they persevere in this perverse quest. Why? Is there a message in the fact that the orders they have requested from the Court go far, far beyond a simple order for eviction? Why are they asking the court to order the complete removal of all infrastructure, including piping, sewage system, RV pads, buildings, etc.? Is there some undisclosed interest somewhere in having this land available as “green acre” property for other purposes?
An ancient Chinese once buried his gold in the ground when facing a horde of invaders and put a sign above the burial site reading “There are no three hundred ounces of gold buried here!”