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Leave to appeal hearing set for July 17

The hearing for Leave to Appeal the Security of Costs decision has been set for July 17 in Oshawa.

In his decision on Dec.  15 (see earlier story below) Justice Lauwers had ruled that DurhamCLEAR had to post a $40,000 security of costs bond towards Covanta's legal bills in order to proceed. This presented an insurmountable barrier.

However, Lauwers also ruled that DurhamCLEAR qualifies as a public interest litigant, and the courts are meant to be accessible to all qualified litigants.

Court Date ??

From previous stories, emails and announcements, you would have been expecting an announcement Feb. 8 re the further court date on the 'Leave to Appeal' the security of costs ruling from our Nov. 30 court appearance.

We're still waiting. That's the short answer.

The longer answer is more convoluted.

The lawyers on both sides had been told to appear in Newmarket Court on Feb 8 to get a date - which they did.

The judge (or somebody) tells them 'you don't belong here - the Oshawa court sets the dates'; so off to Oshawa. The Oshawa court says 'sure, you can have a 2 1/2 hr block on a couple of specific days in July.

But the lawyer for Covanta (Parla) says she needs 3 hr for her case which would have meant going on a rolling schedule where they can call you anytime during a week with only an hours notice. Our lawyer declined that on the grounds that he would have to clear his entire caseload for a week and 2 1/2 hrs is fine with him.

So we have no date yet but we're working on it. We will post the date as soon as we know.

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".

A mixed decision - we can proceed

Justice Lauwers released his decision late afternoon, Dec 15.

He has ruled that DurhamCLEAR has met the requirements to proceed with the application that, if Durham Region proceeds with the incinerator on the Courtice site, it would be violating Clarington's zoning by-law and Official Plan. Durham Region has lost its motion to stop our application from moving forward. That's the first piece of good news.

In addition, Lauwers has agreed that we are a public interest litigant. That's the 2nd piece of good news.

However, he has ruled on the security of costs motion that we need to have "some skin in the game" - specifically, DurhamCLEAR is required to post $40,000 in security at least 7 days "before the final argument of the application" (possibly March or later). It is important to note that this is just security and would be returned to us if we win - and in our view our prospects appear very good.

However, as all of you are aware, DurhamCLEAR does not have $40,000 - indeed we have an already substantial legal bill that needs to be paid.

This part of the ruling is clearly a disappointment. Nevertheless, Eric and our other lawyers are keen to see the action proceed and are still reviewing the ruling. They have already identified a number of options for us to consider and we will be exploring these with them in the coming days.

We remain confident that we can find a way to proceed and look forward to arguing the main motion in court.

We're still very much in the game. Yes, you can fight city hall!

The full text of Lauwers' ruling is here

Bums in seats needed on Nov. 30

In the runup to the court hearing on Nov.30, Covanta is arguing that the opposition to the incinerator is just a bunch of NIMBYs and that there is no strong public interest in this case.

For this reason, we need to pack the court room as a visible indication that the public is still strongly engaged.

Covanta is implying among other things that our interest is monetary and that all we want is to protect our property interests - which is very interesting since they have maintained all along that the incinerator would have no affect on property values.

The legal arguments have been flying back and forth in preparation for Wednesday's hearing. The arguments will be technical and probably boring but the hearing is only 2 hours long - and vital to the future of the incinerator.

We have set up an event page on Facebook - where you can indicate whether you can come or not. Courtrooms are not assigned until the day before and if we know a lot will be coming, perhaps we can get a larger courtroom.

Court Date Set - Nov. 30

We're finally getting our day in court - Wed. Nov. 30, 9:30 am in Oshawa Court in front of Justice Lauwers. Unlike the previous dates we've had and cancelled, the lawyers have agreed to a 2-hour session in which they can debate a couple of procedural motions.

The Region's lawyer, Stephen Waque (Borden, Ladner, Gervais) has brought forward a motion questioning the standing of DurhamCLEAR, and Covanta's lawyer, Doug Thomson (McCarthy Tetrault), has brought forward a motion for security of costs.

Our lawyer, Eric Gillespie is confident we can get past both motions.

Court Date Set - Sept. 23

The initial court hearing in our challenge of the zoning for the incinerator site has been set for Friday, Sept. 23, 9:30 am at Durham Region Courthouse in Oshawa. Further information will be posted here  as the date approaches.

For more information on the case and our legal team, please refer to our earlier story: Legal action commenced against incinerator.

Donate Now Now that the date is set, our fundraising efforts are more important than ever. Receipts to date are on track but we still have a long way to go.

Our lawyers have told us to expect a minimum of $15,000, but we're aiming for $25,000 in order to have a substantial cushion.

Demonstrations serve an important purpose but in themselves cannot stop this project. We need a well-funded legal challenge to carry the momentum into the courtroom.

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