Maple Pool judge tells City lawyer: ‘I wasn’t born yesterday’

I’m not grandstanding here – we are talking about 57 human beings that are just going to be turned out on to the street’ – Judge Robin Baird

BY PHILIP ROUND, COMOX VALLEY ECHO JULY 12, 2013

The judge in the Maple Pool bylaw enforcement case has told City lawyers: “I wasn’t born yesterday.” Justice Robin Baird made his comment at a B.C. Supreme Court hearing in Nanaimo as the City pursued its quest to force the campground into compliance with land use bylaws – a move that could make more than 50 people homeless. “I’m not satisfied that the appropriate steps have been taken,” the judge commented at the end of the day’s hearing. “I’m not satisfied that officialdom has directed its mind adequately to the plight of these people.” He told the court he would have a lot of difficulty issuing an enforcement order that could effectively close the campground without knowing what was going to happen to the people living there.  “I’m not grandstanding here – we are talking about 57 human beings that are just going to be turned out on to the street.” The judge said one of the arguments lawyers representing Maple Pool were making was that the site had been used as a campground for very many years. After it was annexed in to the municipality, the City had issued business licences for its ongoing use and even a letter to help site owners Jin and Dali Lin obtain business finance of $1.1 million from VanCity. But in more recent times, following flooding on the site, the City had taken a very different attitude to its use. Justice Baird said in his view, pursuing the enforcement action was a “pretty sensitive” matter. It wasn’t like taking action over, say, a nonconforming sign on top of a building. Rather, it was one that could result in people being put out of their homes. “We’re talking about private property that’s been used in a certain way for a long time,” he said. “The unvarnished truth of the matter, it seems to me, is whether the City of Courtenay just kind of winked at it, or decided it wasn’t going to do anything until the flood issue came up. “I don’t have any hesitation in accepting that if they (the residents) are put out of their trailers on this site, they’re not going to have anywhere else to go. I think that’s just a fact of life. “So I don’t mind telling you right now that I think a case such as this has got to be treated with a great deal of sensitivity, and a great deal of caution has to be employed in dealing with this case. It’s not like most cases we deal with involving zoning bylaws.” He accepted the issue of alternative accessible housing was a pressing and difficult one, and he had also read in evidence that official bodies, like provincial government ministries and the regional health authority, had referred clients on to Maple Pool for accommodation. He noted the City’s argument that Maple Pool was on the floodplain, but wondered how may other structures that might apply to. The judge referred to Calgary, where recently much more serious flooding had occurred, and – he knew from family experience – in some cases the water had reached four feet up the second storey of residential properties. “Now that’s a river – and that’s a flood,” he remarked. It wasn’t just a case of water rising to the point where people might need to put on duck shoes now and again. But the City’s lawyer, Alyssa Bradley, said Maple Pool was “a very unsafe place” and if Courtenay did not enforce its bylaw, a future flood could result in injuries or even death. If that happened, it would be all over the papers and people would be demanding why the City had not done something to address the issue. The judge acknowledged it was a difficult problem with “obvious” liability arguments. But he was also aware that the matter of the site’s use had been around for some time and was even a campaign issue in the last municipal elections of 2011. Evidence before him showed that the incumbent City Mayor (Greg Phelps) had been defeated by a candidate (Larry Jangula) on a platform “that included support of the little guy, in support of the under-privileged and disenfranchised.” He had also read a long letter to the editor of a local newspaper from a provincial MLA, which the judge summarized as saying: “I stand shoulder to shoulder with the residents of Maple Pool.” Justice Baird went on: “I’m sitting there reading this and thinking: ‘Okay, well what’s going on here? “There seems to be motivation to get to the bottom of this problem, to come up with creative solutions… and yet nothing so far has happened.” Addressing counsel, he added: “So if it doesn’t bother anybody, would you mind telling me what they’ve been talking about the last couple of years? What efforts have been made?” Bradley began to respond saying that the campground had become an issue in 2010. At that time, the time of the flood, the City had “discovered that there were several people actually living there,” she noted. That statement appeared to surprise the judge, who thought knowledge that Maple Pool was already a residential campground would be widespread and have been known for a long time. He commented “I mean, wouldn’t any resident of Courtenay know that this was no longer the late 60s campsite with 23 temporary spots on it? “Wouldn’t it be a matter of common knowledge and notoriety that there was a group of people living on this property full time in trailers or RVs? I mean everyone, everyone in Courtenay would have known, surely?” Bradley responded: “Well, My Lord, it’s not in the evidence and it’s not in the evidence because it is on….” At which point the judge interjected: “Yes, but I wasn’t born yesterday, Ms Bradley. I mean, you live in a small town like that and you know what’s going on. “I’d be surprised if there hadn’t been hundreds of complaints over the years about noise, about people acting up for various reasons – either because they suffer from addictions or because they have mental health problems. “I don’t buy the idea that this must have arisen in 2010 in the imagination of the City of Courtenay. They must have known – I’d be astonished if they didn’t know.” In response to a suggestion a summary trial could proceed to resolve the issue, he responded: “Holy smokes, you know on a human level it’s hard to just say ‘Oh well, you know, it’s just a statutory remedy … the City has the right to enforce its bylaws, whether or not they have in the past, whether they’ve acquiesced in the past…’ But this kind of case can’t get that kind of shrift, I don’t think.”  The judge said it seemed to him the Lins were not slum landlords, but people who took their responsibilities seriously and considered they were providing a public service. Bradley insisted the City had always been open to considering a rezoning application, “but they actually haven’t received anything, and that’s part of the frustration.” She felt ample time had been offered, and the court case had previously been adjourned to allow even more time, but nothing seemed to be happening and another flood season was approaching. The judge said it was an unusual case because of the stakes involved. “They seem to me to be a lot higher than in most cases,” he commented, even compared to cases where people had been camped on the street or outside the Vancouver Art Gallery. “We’re talking about a couple of people (The Lins) who are in to this property for a lot of money, who stand to be wiped out … if this goes through,” he remarked. “The Lins are really going to be gutted financially, and people – human individuals, our fellow citizens – are going to be put out of a home. Now that’s serious stuff.” The case has been adjourned again to a date yet to be fixed, likely in the fall. As reported in last Friday’s Echo, Courtenay’s chief administrative officer, David Allen, says the City is willing to explore options to help resolve the issue “without prejudice” to the ongoing legal action. A meeting will be set up with representatives of the campground and a group of businesspeople who have offered labour, equipment and materials to help bring the site into compliance with land use bylaws without displacing the residents. FOMP-LocalMedia-FeaturedImage-Echo pround@comoxvalleyecho.com © Copyright (c) Postmedia News

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