Anyone who thinks they are waiting for Judge Robin Baird to rule on whether the City of Courtenay can proceed with enforcement action against Maple Pool Campground needs to think again.
And those under a misapprehension about what happens next appear to include some city councillors.
Last month, councillors tried to reassure campground owners Jin and Dali Lin they would allow more time for them to address non-compliance issues and residents more time to find alternative places to live if they had to move out.
In one of the few debates on the subject open to the press and public, councillors reiterated they were waiting for a judgment on the Maple Pool issue, and would seek a court order to give the site’s owners more time to comply with any ruling on the land use going in the City’s favour.
But having checked the full Supreme Court transcript from the last hearing in June, the Echo can now confirm the Judge will not be giving any decision on the land use issue when the court reconvenes.
That’s because he adjourned the preliminary hearing – technically, an application to proceed to a trial – to consider a specific issue with much wider constitutional ramifications.
The Echo put this point to the City’s chief administrative officer, David Allen, and he acknowledges the actual issue of possible enforcement action is not yet even before the court for trial.
Yet the legal costs incurred preparing for the litigation have already topped $120,000.
Allen confirms: “The issue that the court is currently considering is whether to add two residents as defendants to the enforcement proceedings.
“This will not result in a ruling on whether the City’s bylaws are valid or enforceable, nor will it result in an enforcement order.”
He acknowledges the decision on whether or not to allow two new defendants is significant, because the Judge has been advised by the pair’s lawyer they want to raise new issues about the proposed enforcement.
He suggests that a statement he made to the Echo in January that ‘we are currently waiting either for the Judge in the court case to declare a ruling on the issue, or for the Lins to submit a rezoning application’ “is accurate, although it does perhaps oversimplify a complex legal situation.”
Yesterday one observer of the proceedings to date described that comment as “the understatement of the 21st century.”
And, the observer added, whenever and however the issue of adding defendants is resolved, any decision to keep the lawsuit going “will involve an expenditure of public funds that will dwarf the mere $120,000 so far spent on behalf of an unwilling community.”
In his new statement, Allen stresses that local governments “have the right to enforce bylaws and other laws through court proceedings” and that “there is no suggestion that the court action cannot proceed.”
He adds: “At this time, both sides disagree on what issues should be considered by the court and what the outcome should be.”
That disagreement, and the potential intervention of two new defendants, has, he confirms, meant there has not yet even been a decision on how any case should proceed, whether by summary or full trial.
“To sum up, the anticipated court decision on the addition of two new defendants will have a significant influence on the decisions that will be before the court, as well as the court process.”
Should the judge allow the additional defendants to enter the proceedings, raising constitutional questions, that certainly will expand scope of the trial significantly – and increase the associated legal bills. Both sides will need to take stock.
Allen addresses that point in his latest statement: “Once the court makes (its) decision, all of the parties involved will have to evaluate their next steps,” he notes.
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