Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211006 DOCKET: M52714, M52762 & M52781 (C68873)

Coroza J.A. (Motion Judge)

BETWEEN

Foxgate Developments Inc. Plaintiff (Respondent/Responding Party)

and

Jane Doe, John Doe, Skyler Williams, or any agent or person acting under their instructions, and other persons unknown, and the Corporation of Haldimand County Defendants (Appellant / Respondent / Responding Party)

and

Attorney General of Canada and Her Majesty the Queen in Right of Ontario Third Parties (Respondents)

Counsel: Barry L. Yellin, for the appellant Skyler Williams Paul DeMelo and Kristie Jennings, for the responding party Foxgate Developments Inc. Bruce A. Macdonald, for the responding party Corporation of Haldimand County Richard Ogden and James Shields, for the respondent Her Majesty the Queen in Right of Ontario Mary Eberts and Jillian Rogin, for the proposed intervener 1492 Windsor Law Coalition Caitlyn E. Kasper and Jonathan Rudin, for the proposed intervener Aboriginal Legal Services Cara Zwibel, for the proposed intervener Canadian Civil Liberties Association

Heard: September 22, 2021 by video conference

REASONS FOR DECISION

Overview

[1] 1492 Windsor Law Coalition (“1492 WLC”) (M52762), Aboriginal Legal Services (“ALS”) (M52714), and the Canadian Civil Liberties Association (“CCLA”) (M52781) have brought motions for leave to intervene as a friend of the court, pursuant to r. 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in an appeal from an order of the decision of Harper J. (the motion judge) of the Superior Court of Justice.

[2] The order under appeal struck out the appellant’s pleadings on an injunction brought by Foxgate Developments Inc. (“Foxgate”) and the Corporation of Haldimand County (“Haldimand”). The motion judge found the appellant had engaged in an abuse of process due to the appellant’s self-admitted contempt of court. The appellant also seeks leave to appeal the costs decision of the motion judge, which directed the appellant to pay Foxgate and Haldimand substantial costs.

[3] During the proceedings below, the appellant also brought a Notice of Constitutional Question and Third-Party Claim against Canada and Ontario. Both Canada and Ontario are third parties in the appeal.

[4] The appeal was perfected by the appellant on February 23, 2021. All the materials by the parties involved in the appeal were filed by the end of July. The appeal is scheduled to be heard on October 26, 2021.

[5] Foxgate and Haldimand are opposed to the motions. Canada takes no position on any of the motions to intervene. Ontario consents to the motions to intervene by the CCLA and ALS and takes no position on 1492 WLC’s motion.

[6] In determining these motions, I must consider the general nature of the case, the issues that arise in the case, and the contribution that the proposed intervener can make to resolving those issues without doing an injustice to the parties: Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), at para. 22; Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), at p. 167.

[7] I am also mindful that where an appeal involves a private dispute rather than public law, the proposed intervener must meet a stringent standard: Tsige, at para. 23.

Nature of the Case

[8] Foxgate owns a development site that is located on land that is the subject of an ongoing and long-standing land dispute between Six Nations, Canada, and Ontario. The appellant, Skyler Williams, argues that this site is unceded Six Nations land and since July 2020, a group of Indigenous individuals and their supporters has occupied the site.

[9] Foxgate and Haldimand County obtained interlocutory injunctions against the individuals occupying the site and also those demonstrating in surrounding streets.

[10] On August 25, 2020, the motion judge added the appellant as a defendant in the proceeding. The motion judge extended the interlocutory injunctions to October 9. The appellant filed a statement of defence.

[11] At the October 9 hearing, the appellant admitted he was in contempt of court and in breach of the interlocutory orders. He also stated that he would remain in contempt of court and would continue to occupy the site. At this hearing, it became clear that the appellant had also tried to serve the Crown (i.e., Canada and Ontario) on September 18, but the documentation was not in the proper form and had been rejected by the court.

[12] In a written endorsement dated October 16, 2020, the motion judge ruled that he would not permit the appellant to proceed against Canada and Ontario while the appellant was not in compliance with the court’s orders. However, he directed that if the appellant did comply with the orders of the court and vacate the subject lands, he could reinstate himself and fully participate in the proceedings. The matters were adjourned to October 22, 2020.

[13] The appellant then issued a Third-Party Claim on October 20, 2020 and served a Notice of Constitutional Question pursuant to the Rules of Civil Procedure and the Courts of Justice Act, R.S.O. 1990, c. C.43.

[14] At the October 22 hearing, the motion judge asked the appellant if he would comply with permanent injunctions if the court ordered that relief in favour of Foxgate and Haldimand. The appellant stated that his position had not changed.

[15] The motion judge then stated again that the appellant was engaged in an abuse of process and that the appellant was still in contempt of court. He then ordered that the appellant’s pleadings be struck. The motion judge then heard submissions from Foxgate and Haldimand County on the request for permanent injunctions and he granted those injunctions. Finally, the motion judge fixed and ordered costs against the appellant on a substantial indemnity scale to Foxgate at $117,814.18 and to Haldimand at $49,470 (plus HST).

Issues that Arise on Appeal

[16] I have reviewed the factums filed by the parties on the appeal. The appellant asks that this court set aside the final orders made by the motion judge so that the injunction motion can be reheard in the Superior Court with him as a party and on their merits. The appellant also seeks leave to appeal the cost orders.

[17] First, the appellant argues that, in arriving at the decision to strike his pleadings and terminating his further participation in the action against him, the motion judge failed to afford him procedural fairness.

[18] Second, the appellant submits that the court also failed to consider certain principles that ought to apply in cases concerning civil remedies that are levied against Indigenous parties. Specifically, the appellant argues that the motion judge ought to have considered the Gladue sentencing principles before he struck the pleadings.

[19] Finally, the appellant argues that, before striking the appellant’s pleadings, the motion judge ought to have considered:

• whether, by its own admission, the court’s impartiality had been diminished;
• whether amicus curiae ought to have been appointed for the appellant, given that the appellant had supposedly engaged in contumacious behaviour that had not been purged;
• whether the principles of abuse of process ought to have been conflated with contempt of court;
• whether the prosecution of the appellant’s contempt ought to have been referred to the Attorney General to avoid the court taking on a dual role;
• given that a finding of contempt was made on the court’s own motion, whether the hearing ought to have been held in accordance with the principle of strictissimi juris, which it was not; and, among other things,
• whether certain considerations ought to have been afforded to the appellant, since he is Indigenous, and had properly commenced a Third-Party Claim against the Crown and had served a Notice of Constitutional Question.

[20] The appellant will also argue that the order made by the motion judge, directing that the appellant pay over $168,000.00 in legal costs, was exorbitant. He contends that it is based on an error in principle or is otherwise plainly wrong.

Proposed Contributions

Submissions of 1492 WLC

[21] 1492 WLC is a grassroots coalition of students (Indigenous, non-Indigenous, settlers, immigrant settlers) and professors at the University of Windsor, Faculty of Law. 1492 WLC came together in the Fall of 2020 in response to the call to action issued by land defenders at 1492 Landback Lane, a land reclamation action undertaken by the appellant and many other Haudenosaunee and non-Haudenosaunee people. 1492 WLC has worked to provide accessible public legal information and research related to the reclamation, media support, court support, solidarity statements, and solidarity event organizing.

[22] 1492 WLC argues that it would make a useful contribution by intervening in order to examine the ways in which settler colonialism in Canada has influenced the place of Indigenous peoples and legal orders in Canadian law, and to explore the ways in which the injunction remedy has been shaped by this influence. 1492 WLC would argue that Indigenous Legal Orders should form part of the rule of law. 1492 WLC asserts that the rule of law has been raised in the appeal and is not a new legal issue.

[23] 1492 WLC’s 21-page draft factum addresses the appropriateness of an injunction remedy in the context of land protest cases by Indigenous persons. 1492 WLC submits that, if this court on appeal should decide that errors by the motion judge require the injunction to be set aside and a new proceeding ordered, this court should provide guidance on various procedural and substantive matters to the court rehearing the matter.

[24] 1492 WLC seeks to file a 20-page factum and be given 20 minutes of oral submissions. They also seek that no costs be awarded for or against them.

Submissions of ALS

[25] ALS is a multi-service legal agency that provides services to the Indigenous community in Ontario. ALS’ expertise arises from its direct work with and on behalf of Indigenous communities. This expertise has been recognized both in courtrooms and in other arenas. Over the past thirty-one years, ALS has worked to convey Indigenous perspectives in justice-related matters. ALS has been granted intervener status in 26 Supreme Court cases and participated in at least 18 cases at this court, either as an intervener or as counsel to the accused.

[26] ALS submits that the issues raised in this appeal will directly impact their clients and the Indigenous community members who face contempt of court due to asserting their s. 35 rights in a dispute where injunctive relief has been granted. According to ALS, there is a need for this court to hear from the broader Indigenous community, not just that of the appellant.

[27] ALS’s 20-page draft factum highlights the following issues raised by this appeal. ALS submits that it can provide a distinct perspective on these three issues without expanding the scope of the appeal:

1. The breadth of the analytic framework necessary to determine an application for injunction against members of an Indigenous community when s. 35 interests are engaged;
2. Why every effort must be made by the court to encourage the resolution of competing rights and interests; and
3. The approach in treatment of an Indigenous contemnor’s participation in court proceedings when contempt has not been purged.

[28] ALS seeks to file a 20-page factum and be given 20 minutes of oral submissions. They also seek that no costs be awarded for or against them.

Submissions of the CCLA

[29] The CCLA is a leading national, independent, non-profit, and non-governmental organization dedicated to the furtherance of civil liberties across Canada. It was formed with the objective of promoting and advancing respect for and observance of fundamental human rights and civil liberties. In recognition of its important role, the CCLA has frequently been granted intervener status before courts, including this court.

[30] The CCLA has substantial expertise in the areas of protecting and promoting fundamental freedoms, including freedom of expression, peaceful assembly, and association. The CCLA has frequently been involved in litigation and policy debates implicating the right to protest and considering the permissible nature and scope of state conduct in relation to protest activities, including work focused on the special considerations relevant to protests involving Indigenous people.

[31] The CCLA argues that its submissions will assist the court in placing the appeal in a broader context and address points that are distinct from those raised by the parties or other proposed interveners.

[32] The CCLA’s 16-page draft factum makes the following three submissions that, it submits, provide a distinct perspective that does not expand the scope of the appeal:

1. A finding of contempt requires that the alleged contemnor be afforded meaningful due process;
2. Amicus curiae should be appointed in requires for ex parte injunctive relief that significantly engage constitutional rights; and
3. The need to consider systemic racism and discrimination before denying a litigant an opportunity to be heard and sanctioning the individual with a large costs award.

[33] The CCLA seeks to file a 20-page factum and be given 20 minutes of oral submissions.

Prejudice

[34] An overarching concern is prejudice to the parties in the appeal due to the timing of these motions. The proposed interveners have waited a long time to bring these motions given that the appeal was perfected on February 23, 2021. If the court were to grant leave to intervene, the respondents would only have a brief period of time to provide responding submissions. Although this concern is somewhat alleviated because all of the proposed interveners served draft factums in late July and early August when they brought their motions for leave to intervene, the reality is that the proposed intervention has been brought late in the day. I am of the view that there are legitimate concerns regarding prejudice from the late filing of motions approximately six weeks before an appeal that was perfected on February 23, 2021. If intervention is granted, materials would have to be produced to respond to the interventions. An intervention of this nature is meant to assist the court. The assistance can be significantly diminished when five additional factums [1] are being filed at the last minute: Foster v. West, 2021 ONCA 263, 55 R.F.L. (8th) 270, at para. 18.

[35] Foxgate and Haldimand argue that most of the submissions the proposed interveners seek to make are not relevant to the narrow procedural issue which is the subject matter of the appeal and that they will be prejudiced by the inordinate delay and increased costs that will be caused by the proposed interveners attempts to add substantial new arguments and issues not raised by the parties.

[36] Foxgate especially opposes 1492 WLC’s intervention because, it argues, that 1492 WLC has no standing as an unincorporated association to intervene, and 1492 WLC’s intervention is inappropriate, given that 1492 WLC has provided support and legal advice to the appellant throughout the proceedings.

Discussion

[37] I do not think it can be seriously argued that all three proposed interveners have expertise with a distinct perspective of this case. The primary consideration on this motion is an assessment of the contribution that each proposed intervener can make to the issues raised by the appellant without doing an injustice to the parties.

[38] The submission made by Foxgate and Haldimand that the appeal is “limited to whether any individual, whether an Indigenous person or a non-Indigenous person who is in contempt of the Court on their own admission is to be afforded the ability to advance their own claims and interests before the Court against others in the same proceedings” is an overly simplistic characterization that is devoid of context. While it is true that the appeal does not relate to the merits of the granting of interim or permanent injunctions against the appellant and does not relate to the constitutionality of injunctions in relation to First Nations’ claims or contempt in First Nations’ cases generally, the striking of the appellant’s pleadings must be viewed in the context of the fact that it was an injunction proceeding that brought the appellant before the Superior Court of Justice.

[39] Although the nature of this case is a private dispute, and a stricter onus has been applied to interventions in private disputes, the issues raised in this appeal involve broader public policy considerations that transcend the dispute between the immediate parties. This court has held that the “more onerous threshold may be softened somewhat where issues of public policy arise”: Tsige, at para. 23, citing Childs v. Desormeaux (2003), 67 O.R. (3d) 385 (C.A.), at paras. 3, 10; Huang v. Fraser Hillary’s Limited, 2018 ONCA 277, at para. 5. While it is true this is not a case that directly involves s. 35 of the Constitution Act, 1982, in his factum, the appellant, who is Indigenous, will argue that the rule of law has many dimensions, including respect for minority rights, reconciliation of Aboriginal and non-Aboriginal interests through negotiations, and fair procedural safeguards. In my view, the appellant does raise the important public policy issues in his factum about whether the assertion of collective interests by an Indigenous person impacts the appropriateness of a decision to strike pleadings for abuse of process from contempt.

[40] That said, all of these public policy issues are addressed in the appellant’s factum. Furthermore, the specific remedy sought by the appellant from this court is for the motion judge’s orders to be set aside so that he can meaningfully participate in a rehearing that will determine Foxgate and Haldimand’s request for a permanent injunction. Given the general nature of the case and the issues that arise in the appellant’s factum, I must assess the contribution that the proposed interveners can make to those issues and also keep in mind the arguments relating to prejudice advanced by Foxgate and Haldimand.

1492 WLC

[41] In my view, 1492 WLC should not be granted intervener status in this case because they will not make a useful contribution without prejudicing the parties. Their draft factum solely addresses the appropriateness of a permanent injunction in the context of land protests by Indigenous persons. Although the context of an injunction proceeding is important, this issue is not before the court and it expands the record in a way that is prejudicial to the parties. The parties would be required to address a new issue so that this court can give potential guidance to the court below relating to permanent injunctions if it is sent back for a rehearing. In my view, if this court does send the case back for a rehearing, it is open to 1492 WLC to seek intervention status for that hearing.

[42] In light of my decision to deny 1492 WLC’s motion, I need not deal with Foxgate and Haldimand’s submission that 1492 WLC has no standing because they are not incorporated. However, that submission seems to be more of an objection that is one of form rather than substance. This court has rejected the submission that an unincorporated entity is barred from intervention: Halpern v. Canada (Attorney General) (2003), 169 O.A.C. 172 (C.A.), at para. 7. I agree with WLC 1492’s submissions that they are not a “fly-by-night” organization that will disobey any rules and parameters set by a court and that the lack of “incorporation” by the organization should not be a bar to their proposed intervention.

[43] Nor do I need to deal with Foxgate’s submission that WLC 1492 is really an appellant in disguise. Again, I would only make the observation that this court in other cases has recognized that interveners “need not be ‘impartial’, ‘objective’ or ‘disinterested’ in the outcome of the case” and “[t]he fact that the position of a proposed intervenor is generally aligned with the position of one of the parties is not a bar to intervention if the intervenor can make a useful contribution to the analysis to of the issues before the court”: Oakwell Engineering Limited v. Enernorth Industries Inc., at para. 9; Childs, at para. 13.

ALS

[44] Like 1492 WLC, ALS’s submissions also focus mostly on considerations of injunction proceedings against members of an Indigenous community when s. 35 rights are engaged (approx. 15 pages). In contrast to 1492 WLC’s submissions which address the particulars of the test of an injunction, ALS does provide additional brief submissions that focus on the treatment of an Indigenous contemnor’s participation in court proceedings when contempt has not been purged. However, I am of the view that this issue will be addressed by the appellant who may develop the submissions made at para. 93 of his factum. In my view, the court does not require additional assistance from ALS on this specific issue, which is outlined at paras. 46 to 56 of its draft factum. Indeed, the submissions advanced by ALS will likely be duplicative of the appellant’s submissions.

CCLA

[45] While the CCLA does focus on the issues before the court, their arguments about due process are largely duplicative of the submissions that will be advanced by the appellant in his appeal. I have already summarized the submissions of the appellant earlier in these reasons. There is considerable overlap between the submissions of the CCLA and the appellant. Moreover, the proposed submissions on the appropriateness of appointing amicus curiae in cases where ex parte injunctions may impact constitutional rights is also addressed by Ontario, a third party to this appeal. Overall, I cannot say with confidence that the CCLA provides a unique perspective on this particular case. The submissions made by the CCLA will be addressed by the parties in the appeal.

[46] Overall, I am not persuaded that WLC 1492, ALS, or the CCLA have any distinct contribution to make in relation to this specific appeal. I am satisfied that the Indigenous perspective will be fully and adequately addressed by the appellant.

[47] In conclusion, I agree with Foxgate and Haldimand that a substantial portion of the submissions proposed by WLC 1492 and ALS inappropriately expands the legal issues on appeal by making submissions on injunctions. With respect to the CCLA, I find that a substantial portion of its submissions overlaps with those made by the appellant. When I consider the nature of this appeal against the nature of the contribution that could be made to the issues in dispute, and the nature of the prejudice that could arise from allowing perfection of such a late intervention, I conclude that the motions must be dismissed.

DISPOSITION

[48] The motions to intervene are dismissed.

[49] Foxgate and Haldimand seek costs of these motions. In my view, this is not an appropriate case to order costs against the proposed interveners. The motions are from public interest organizations and an organization that is associated with a Canadian law school. There will be no order as to costs of this motion.

“S. Coroza J.A.”

[1] Foxgate and Haldimand would likely file separate factums.