Mohawks of the Bay of Quinte v. Brant, 2009 ONCA 581

CITATION: Mohawks of the Bay of Quinte v. Brant, 2009 ONCA 581

DATE: 20090721

DOCKET: C48610

COURT OF APPEAL FOR ONTARIO

Feldman, Juriansz and Epstein JJ.A.

BETWEEN

R. Donald Maracle, Chief of the Mohawks of the Bay of Quinte on behalf of the Tyendinaga Mohawk Council and All Members of the Mohawks of the Bay of Quinte

Plaintiffs (Respondents)

and

Shawn Michael Brant, Ronald Leslie Brant, Andrew Clifford Maracle (a.k.a. Sir Andrew C. Miracle and Andrew Clifford Miracle) and Ohwistha Capital Corporation

Defendants (Appellant)

Robert J. Reynolds, for the appellant

Roger Horst and Fabia Wong, for the plaintiffs (respondents)

Heard & released orally: July 16, 2009

On appeal from the judgment of Justice Lynn Ratushny of the Superior Court of Justice dated March 27, 2008.

ENDORSEMENT

[1] This appeal involves lands beneficially owned by the Band. The Brants claimed possessory rights to the land under an alleged 1993 agreement between them and the Band. Maracle claims an equitable interest in the lands on the basis of his having purchased them from Shawn Brant. The trial judge allowed the respondents’ claim and found Maracle to be a trespasser on the lands. She ordered him to give up possession of the lands on which he operates several businesses including a retail gas station and to pay damages, as well as other consequential relief.

[2] We would dismiss the substance of the appeal, but modify the relief granted.

[3] The trial judge’s adverse findings regarding the credibility of Shawn Brant are not undermined by the way she treated the testimony of the witnesses, Linda Leween and Darlene Francis in respect of the November, 1993 purported sale of the lands by the Band to the Brants. She had an ample basis for finding that Brant’s evidence that Ohwistha agreed to deliver the purchase price to the Band was untrue. Her finding that the Brants were responsible for their own failure to complete the transaction was supported by the evidence.

[4] Given the fully supported findings of the trial judge, the appellant’s legal argument that the 1993 agreement was breached and the Brants are entitled to specific performance because a representative of the Band impeded completion of the transaction, lacks the necessary factual basis. Equally, the facts as found do not support the appellant’s submission that the Band is estopped from asserting its legal right to the lands. Further, the trial judge found that the appellant’s actions on the lands were not taken in reliance upon any apparent acquiescence by the Band to Brant’s occupation of the lands.

[5] In exercising her discretion to award a mandatory injunction requiring Maracle to vacate the lands, the trial judge considered the appellant’ interest on all the relevant factors. We see no error in ordering the appellant to vacate the land.

[6] However, we do agree that certain terms of the judgment granted are too broad and are beyond the scope of the evidence called at trial. We would set aside paragraph 10 of the judgment, as now agreed by the Band. We would amend paragraph 11 to order only that Maracle remove his chattels from the lands and buildings forthwith. We would amend paragraph 12 to order that Maracle obtain an environmental assessment of the lands and buildings and to pay for the remediation of any environmental damage for which a court finds that he is responsible.

[7] We see no error in the trial judge’s assessment of damages, including punitive damages. She considered the appropriate factors and articulated a rational purpose to be served by the punitive damages; namely, she said at paragraph 133 that:

It is important that the Brants, Miracle and other members of the Band who might have supported them understand that the Band and Council control the land in the Territory, that their authority must be recognized, that court orders must be respected and that the lawlessness that has occurred in this case cannot continue or be repeated.

[8] In summary, the appeal is allowed in part and the judgment varied as indicated. All other aspects of the appeal are dismissed. Costs in favour of the respondents are fixed on a partial indemnity scale in the amount of $33,000 inclusive of disbursements and G.S.T.

“K. Feldman J.A.”

“R.G. Juriansz J.A.”

“G.J. Epstein J.A.”