DC to appeal security portion of decision

After thoroughly digesting Justice Lauwers' decision, DurhamCLEAR has decided to appeal the security portion of his decision.

While we were delighted that he gave us standing to proceed and that he declared that we qualified as a public interest litigant, We were stymied by the requirement to post security. DurhamCLEAR does not have $40,000 and it would be impossible to raise that amount within the time frame allowed.

Up until this decision there has been a generally accepted legal principle that public interest litigants were treated differently with respect to cost awards, and were not required to post security for costs.

This ruling is a concern not just to DurhamCLEAR but to public interest litigants throughout Canada.

DurhamCLEAR has little choice but to appeal this aspect of his decision.

As a result, an application for Leave to Appeal was filed on Friday, December 23.

Our lawyers will appear in Newmarket court on Feb 8, 2012 to set a date for the Leave to Appeal hearing. If Leave is granted, then the actual appeal will go before a three-judge panel at a date still farther in the future.

Should leave be granted, this appeal will greatly lengthen the legal process. Among other things this gives us longer to raise the money to pay, not only our own legal bills, but potentially give us enough money to post the $40,000 should we lose the appeal.

Meanwhile, the Region has indicated that it wants to start construction of the incinerator this month (January). Clarington has granted Site Plan approval and an application for the Building Permit on a portion of the project has been received. It is "for a small part of the main building and is for a footing and foundation for the refuse pit area and tipping area only".

In response to an enquiry, Rick Pigeon, the Chief Building Official for Clarington indicated that "once we have completed our plans examination and this project complies to all applicable laws, then I must issue the building permit."

Clarington has a quandary. The essence of DurhamCLEAR's legal action is that the project does not comply with the existing Official Plan and Zoning ByLaw. If the Chief Building Official signs off that it does comply and subsequently, the court decides that it doesn't, what then?

So we wait.