Court of Appeal for Ontario

Date: 2021-12-21 Docket: C68873

Doherty, Miller and Sossin JJ.A.

Between:

Foxgate Development Inc. Plaintiff (Respondent)

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)

Counsel:

Barry L. Yellin, Wade Poziomka and Nick Papageorge, for the appellant Paul Demelo, for the respondent Foxgate Development Inc. Woody McKaig, for the respondent The Corporation of Haldimand County Richard Ogden and James Shields, for the third party Her Majesty the Queen in Right of Ontario Owen Young and Andrew Law, for the third party Attorney General of Canada

Heard: October 26, 2021 by video conference

On appeal from the judgment of Justice R. John Harper of the Superior Court of Justice, dated October 22, 2020, with reasons reported at 2020 ONSC 6529, 12 M.P.L.R. (6th) 129.

Sossin J.A.:

Overview

[1] This appeal concerns the requirements of fairness where a court’s own motion results in an order striking the pleadings of a self-represented party.

[2] Skyler Williams (“Mr. Williams”) is Haudenosaunee and resides at the reserve situated at Six Nations of the Grand River. Mr. Williams was added as a named defendant in interlocutory injunction proceedings brought by Foxgate Developments Inc. (“Foxgate”).

[3] The motion judge found that Mr. Williams, an alleged leader of a group of protestors occupying land where Foxgate was developing a housing project (the “subject lands”) in Haldimand County, was in defiance of court orders. On that basis, the motion judge determined that Mr. Williams was in contempt of court and had engaged in an abuse of process. Mr. Williams’ pleadings, including his statement of defence, his notice of Constitutional question, and third-party actions against the federal and provincial Crown, were ordered struck in the main action on the court’s own motion.

[4] The motion judge granted the permanent injunction sought by Foxgate and ordered costs in excess of $168,000 against Mr. Williams.

[5] For the reasons that follow, I would allow the appeal on the basis that the motion judge failed to afford Mr. Williams the procedural fairness required by law before making an order striking his pleadings and foreclosing his further participation in the proceedings.

Background

[6] After purchasing the subject lands in 2015, Foxgate notified representatives of the Six Nations of the Grand River (“Six Nations”) and the Mississaugas of New Credit First Nations of its intent to develop these properties as part of the regulatory process. Archeological investigations of the subject lands were undertaken in consultation with these First Nations, and uncovered no areas of concern. In 2019, Foxgate entered into a “Definitive Agreement” with the Six Nations Elected Counsel and the Mississaugas of New Credit. This agreement transferred 42 acres of land to the Six Nations. It also paid funds in trust for land development for Six Nations.

[7] Protestors began attending the subject lands in July of 2020. Foxgate commenced this action by way of the Notice of Action on July 27, 2020. It sought, among other things, an interim and interlocutory order enjoining the John and Jane Doe defendants from obstructing the subject lands which it planned to develop. It alleged that the then un-named personal defendants had engaged in trespass and other efforts to obstruct the development of the subject lands.

[8] Foxgate brought a motion on an ex-parte basis before the motion judge and received an interim and interlocutory injunction order on July 30, 2020. The order enjoined the obstruction and trespass on the subject lands, and further ordered the removal of structures on and any barricades to the lands, along with other relief.

[9] The respondent Corporation of Haldimand County (“Haldimand”), also brought a motion before the motion judge seeking interim and interlocutory injunctive and mandatory relief to have certain barricades and other obstructions removed from a street in Caledonia.

[10] Based on these ex-parte motions, orders for interim injunctions were granted to both Foxgate and Haldimand (the “respondents”). Notwithstanding these orders, the situation on the subject lands deteriorated. The motion judge found that the protestors continued to occupy the subject lands, refused to allow anyone representing Foxgate or its building partners to attend the property, and refused to permit work in preparation for the implementation of utilities on the land (such as where the gas lines would run). The protesters were also building structures on the property, and fires were set. When fire fighters arrived, they were met by rocks thrown by protestors. The motion judge found the situation constituted a risk to public safety.

[11] The matter returned to court on August 25, 2020. There, Foxgate sought an order to continue the injunction, and to add Mr. Williams as a party to the action on the basis of an affidavit filed by a Foxgate executive which characterized Mr. Williams as a “protest leader”.

[12] A lawyer, who advised the court that he had not yet been retained by Mr. Williams, attended on Mr. Williams’ behalf via Zoom. He asked for a brief adjournment to review the materials, but the motion judge denied his request and ordered that Mr. Williams be added as a party.

[13] Following the August 25, 2020 hearing, Mr. Williams was formally added to the proceeding through an amendment to the Notice of Action. Thereafter, Foxgate served and filed a Statement of Claim against him, and Mr. Williams served and filed a Statement of Defence on his own behalf. While it appeared that Mr. Williams had intended to retain counsel, in the end he did not do so.

[14] Prior to the matter returning before the motion judge, the OPP provided evidence, through the affidavit of the Regional Commander for the West Region, of the increasingly tense standoff that had developed around the subject lands, including the potential for further violence. The OPP’s evidence was that two officers were assaulted on August 5, 2020, and that some of the protestors were arrested for refusing to leave the property.

[15] Mr. Williams tendered evidence by way of two affidavits filed with the court and served upon the parties. In them, Mr. Williams stated, “I am a Haudenosaunee man who does not belong before this colonial court.” These affidavits summarized the history of the subject lands, the duties he believed he was under according to Haudenosaunee law, the need for reconciliation and the duty to consult, as well as his position on irreparable harm with respect to the injunction.

[16] On October 9, 2020 the parties again attended court. Mr. Williams participated in the hearing, and was permitted to cross-examine the OPP witness on his evidence.

[17] While Mr. Williams attended court, he made clear that he was not abiding by the interim injunction that had been ordered and did not intend to comply with future court orders.

[18] The motion judge inquired whether counsel for Foxgate intended to bring a motion to strike Mr. Williams’ participation in the proceedings as a result of William’s non-compliance with court orders. Counsel for Foxgate stated they had no such intent.

[19] Regardless, the motion judge found, on his own motion and based on his inherent jurisdiction, that Mr. Williams had admitted he was in contempt of court orders and that this contempt constituted an abuse of process. Accordingly, the motion judge prevented Mr. Williams from further participation in the proceedings. He added that, if Mr. Williams and his followers were to comply with the injunction orders, vacate the subject lands and agree to be bound by the orders of the court, Mr. Williams could be “reinstated” and fully participate in the proceedings.

[20] The parties returned on October 22, 2020. Mr. Williams’ position with respect to the court orders had not changed, and he continued to assert that he had no ability to direct the conduct of other protestors who were occupying the subject lands.

[21] In orders following that hearing, the motion judge struck Mr. Williams’ pleadings in the injunction, including his third-party actions against Canada and Ontario, and granted a permanent injunction to the respondents.

Analysis

[22] Mr. Williams raises the following issues on this appeal:

1. that the motion judge erred in finding Mr. Williams in contempt without affording him the procedural safeguards required by law, and that the motion judge conflated his finding on contempt with his finding on abuse of process;
2. that the motion judge failed to consider Mr. Williams’ status as an Indigenous person before the court;
3. that the motion judge lacked impartiality and should have considered the appointment of an amicus curiae; and
4. that the exorbitant costs imposed on Mr. Williams constituted an error in principle and was plainly wrong.

[23] Each issue is addressed below.

The motion judge failed to afford Mr. Williams procedural fairness

[24] The motion judge justified his order striking Mr. Williams’ pleadings on the basis of contempt and abuse of process. The motion judge appeared to view these distinct areas of law interchangeably.

[25] In explaining the basis for the abuse of process finding in his reasons of October 16, 2020, reported at 2020 ONSC 6244, 8 M.P.L.R. (6th) 144, the motion judge explains:

[50] The whole concept of abuse of process is to prevent abuse by a party of the Court. I find that it is an abuse of process for Skyler Williams, the leader of those that are occupying the subject lands, to come to this Court and state that he does not belong in this Court, this Colonial Court, and that he will continue to be in open and flagrant defiance of any orders that are made. It cannot be a fair process to all the litigants in this case to have one party be in open defiance of both the process and of the orders of this Court and at the same time allow that party to further extend these proceedings while openly defying the Court.

[51] Skyler Williams is seeking to bring a Constitutional question before the Court and involve the Attorney General of Canada and the Attorney General of Ontario. While Skylar Williams and the other defendants are not in compliance with the Court orders, I will not allow his claims to proceed. However, if he and his followers comply with the orders of this Court and vacate the subject lands and agree to be bound by the orders of this Court, he may reinstate himself and fully participate in these proceedings.

[26] The above paragraphs suggest that the motion judge disallowed Mr. Williams’ participation in the proceedings on the basis of abuse of process. However, in his subsequent reasons assessing whether Mr. Williams should be “reinstated,” the motion judge refers to the importance of the court’s contempt powers, citing the reasons of McLachlin J. (as she then was) in United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, at p. 931.

[27] Similarly, during the October 22, 2020 hearing, as part of the motion judge’s finding that Mr. Williams would not be reinstated, he stated “[t]here will be no further participation. Mr. Williams is in contempt and continues to be in contempt. And contemptuous individuals cannot have access to the court.”

[28] Additionally, in his reasons of October 29, 2020, the motion judge stated, at para. 16, “I am not punishing Skyler Williams for his contempt in the face of this court. However, I cannot allow him to continue in these proceedings while he is in such open contempt even after being given the opportunity to be reinstated.”

[29] This conflation of contempt and abuse of process itself constituted an error, for reasons detailed below. However, whatever the basis for the motion judge’s order to strike Mr. Williams’ pleadings and foreclose his participation in the proceedings, Mr. Williams was entitled to procedural fairness. This obligation of fairness is contextual. In this case, the context included:

• Mr. Williams was brought into this litigation by the respondents and pursuant to a court order. The motion judge refused to grant a 24-hour adjournment to allow a lawyer appearing on Mr. Williams’ behalf (though not retained at that point) to review the materials;
• The process culminating in the removal of Mr. Williams from the proceeding was instigated by the court;
• Mr. Williams was self-represented;
• Mr. Williams is Indigenous, and the issues he raised engage substantial questions that concern both the rule of law and the sui generis nature of Indigenous legal claims; and
• The very serious consequences to Mr. Williams, which flowed from the order made against him.

[30] Against this contextual backdrop, as I explain below, Mr. Williams was denied the procedural protections to which he was entitled under the law of contempt and with respect to a finding of abuse of process.

(1) The finding of contempt

[31] The court’s contempt authority is procedurally and substantively distinct from its authority to make a finding of abuse of process.

[32] The hearing of a motion for contempt is usually bifurcated, with a first hearing to consider whether contempt is established, and a second hearing to determine the appropriate sanction for the contempt (if the contempt is not purged in the interim): see College of Optometrists of Ontario v. SHS Optical Ltd., 2008 ONCA 685, 300 D.L.R. (4th) 548, at para. 73, leave to appeal refused, [2008] S.C.C.A. No. 506.

[33] The nature and criteria for a contempt order were set out by this court in Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85, 94 O.R. (3d) 614:

[20] A finding of contempt of court is a serious matter that is quasi-criminal in nature. It is "first and foremost a declaration that a party has acted in defiance of a court order": Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, [2006] S.C.J. No. 52, at para. 35. The potential penal sanctions facing a contemnor underscore the seriousness of such a finding. As the Supreme Court of Canada has observed, "[t]he penalty for contempt of court, even when it is used to enforce a purely private order, still involves an element of 'public law', in a sense, because respect for the role and authority of the courts, one of the foundations of the rule of law, is always at issue": Pro Swing, at para. 34, citing Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065, [1992] S.C.J. No. 79, at p. 1075 S.C.R. This court has recently reaffirmed these principles in Chiang (Trustee of) v. Chiang (2009), 2009 ONCA 3, 93 O.R. (3d) 483, [2009] O.J. No. 41, at paras. 10-11. It is for these reasons that motions for contempt are often said to be strictissimi juris, i.e., that all proper procedures must be strictly complied with: see Dare Foods (Biscuit Divisions) Ltd. v. Gill, [1973] 1 O.R. 637, [1973] O.J. No. 21 (H.C.J.); Toronto Transit Commission v. Ryan (1998), 37 O.R. (3d) 266, [1998] O.J. No. 51 (Gen. Div.).

[21] The three constituent elements of the test for civil contempt were summarized by this court in Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 82 O.R. (3d) 686, [2006] O.J. No. 2488 (C.A.), at para. 27:

The criteria applicable to a contempt of court conclusion are settled law. A three-pronged test is required. First, the order that was breached must state clearly and unequivocally what should and should not be done. Secondly, the party who disobeys the order must do so deliberately and wilfully. Thirdly, the evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order (citations omitted).

See also with respect to the substantive criteria of contempt, Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35.

[34] Mr. Williams’ admission that he was “in contempt” does not permit the court to circumvent the procedural protections which accompany a contempt proceeding, nor does such an admission, in and of itself, meet the criteria for a finding of contempt.

[35] Mr. Williams, who was self-represented at the time the motion judge initiated the proceedings to disallow his participation, was never made aware of the precise conduct that formed the subject of the alleged contempt, nor was it clear what Mr. Williams referred to when he acknowledged to the motion judge that he was “in contempt.”

[36] At the time Mr. Williams made this statement, he was not present on the subject lands. Was Mr. Williams’ contempt his prior breaches of the interim injunctions involving the subject lands, or was it his assertion that he would not follow future court orders? Did Mr. Williams’ alleged contempt relate to his own conduct or his influence over the conduct of others?

[37] While the scope of Mr. Williams’ admission is unclear, the motion judge’s finding of contempt appeared to include both Mr. Williams and his alleged followers, and related both to current and future court orders. The motion judge stated in his reasons of October 16, 2020:

[51] While Skylar Williams and the other defendants are not in compliance with the Court orders, I will not allow his claims to proceed. However, if he and his followers comply with the orders of this Court and vacate the subject lands and agree to be bound by the orders of this Court, he may reinstate himself and fully participate in these proceedings. [Emphasis added.]

[38] Additionally, the motion judge did not inform Mr. Williams of the criteria for contempt or the applicable evidentiary standard, nor was he advised of the potential consequences of such a finding. Further, the motion judge failed to instruct himself on the process to be followed or the evidentiary standard to be applied in a contempt motion.

[39] The motion judge admitted and appeared to rely on evidence, such as a video that Mr. Williams argued was filmed at his own house, which was not properly led by the respondents. The motion judge interpreted this video as evidence that Mr. Williams was on the subject lands in defiance of the interim injunction. The motion judge failed to advert to the problems in considering such untested evidence, nor did he consider the well settled principle that any doubt in evidence in contempt proceedings must be resolved in favour of the person alleged to be in contempt: see Prescott-Russell Services for Children and Adults v. G. (N.) et al (2006), 82 O.R. (3d) 686 (C.A.), at para. 27.

[40] Mr. Williams relies on Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council (2006), 82 O.R. (3d) 721 (C.A.), as authority for the requirement of procedural fairness in the contempt process. In Henco, which also involved protestors from an Indigenous community found in contempt for occupying land subject to a court injunction, this court set aside criminal contempt convictions on the basis that those subject to the orders had not been given procedural fairness. They had been convicted of criminal contempt without ever participating in a proceeding against them or being given an opportunity to explain why the contempt finding was not merited.

[41] While this is a case of civil contempt, the requirement that a person subject to contempt proceedings have a fair opportunity to answer the allegations against them is equally applicable.

[42] Notwithstanding this context, Mr. Williams was not given an opportunity to address his alleged contempt. While prohibited from fully participating in the proceedings, Mr. Williams did raise the importance of considering contempt within the context of his rights as an Indigenous person generally and the Gladue principles specifically. The motion judge refused to consider these submissions.

[43] At the hearing of October 9, 2020 Mr. Williams responded to the motion judge’s question about his defiance of the interim injunction order, and his belief that the proceedings before the motion judge should have been considered in the broader context of his rights as an Indigenous person, stating:

I am in contempt and, of, of your order and it’s not something that I’m disputing. What I am asking though is that this Court consider the Application of Gladue principles.… [T]hose Gladue principles I think set out very clearly the inherent prejudice from the systemic problem that, and the prejudices that are both in this court and criminal court. I think the Truth and Reconciliation Commission calls to action speaks very much at length of all of those things.… I think that all of those, all of those processes that have happened including the one Gladue, that speaks to nothing but the prejudicial nature of the, of the courts against our Indigenous people. And so I think by limiting my ability to come to the court today and the open way that I have to be able to answer to this injunction and speak in my defence I think would further create that divide …. Your Honour has stated on the, the 25th [of August] that my failure to participate in the court proceedings was our failure to participate in reconciliation and so now that I’m here, I think that it is, it would be, it would paint the Court in a bad light and certainly, certainly by making an order that sees me not able to defend myself here. [Emphasis added.]

[44] Mr. Williams’ affidavits, dated October 5, 2020, expanded on his belief that his presence on the subject lands was in furtherance of his legal obligations as a Haudenosaunee man, his interpretation of the Nanfan Treaty of 1701, and that he and his people would suffer irreparable harm if the injunction sought by the respondents were to be granted.

[45] The motion judge was not open to constitutional arguments or arguments rooted in Indigenous law being raised as part of either the contempt or abuse of process determinations or the injunction proceedings. He explained, in his October 16, 2020 reasons:

[46] Legitimate claims and grievances can and should be played out in a peaceful and respectful process that includes negotiations with various levels of government. Properly constituted lands claims that are either brought to the Courts in a timely manner or before the appropriate tribunals. That has not been done. There are very legitimate grievances and claims of Indigenous people in Canada. As a society and as a Court, we must take into account the many years of systemic abuse inflicted upon Indigenous people and we try to do so. However, it is never proper or acceptable to achieve your goals, regardless of how heartfelt they are, in open defiance of the law and in open and flagrant disregard for the life and property of others.

[46] In light of the motion judge’s decision to strike the third-party actions, the Attorneys General for Ontario and Canada made submissions before this court on appeal. Canada argued that the motion judge vitiated Mr. Williams’ right to make a full answer and defence to the allegations of contempt against him. Canada claimed that the motion judge compounded his error by failing to answer Mr. Williams’ Constitutional question as part of his consideration of penalties and of the permanent injunction. Similarly, the Attorney General for Ontario submitted that Mr. Williams was entitled to procedural safeguards, especially since his contempt was not “in the face of the court”. This type of contempt, it continued, entitles the alleged contemnor to the same procedural safeguards as an accused person in a criminal proceeding. Both third parties agree that the motion judge denied Mr. Williams’ right to procedural fairness such that this court should intervene.

[47] I agree. The motion judge erred in denying Mr. Williams the procedural safeguards to which he was entitled under the law of contempt.

(2) The finding of abuse of process

[48] Since the motion judge’s finding of contempt cannot stand, his reliance on that contempt as a basis for abuse of process also constituted an error. Even aside from his reliance on contempt, however, the motion judge failed to afford Mr. Williams procedural fairness in relation to the abuse of process finding.

[49] The motion judge relied on his inherent jurisdiction as a basis for his finding of abuse of process. He justified the finding by referring to Mr. Williams’ “flagrant defiance” of court orders.

[50] Once again, the motion judge rejected the relevance of Mr. Williams’ arguments in relation to Indigenous rights with respect to his finding of abuse of process. He stated in his reasons of October 16, 2020:

[47] As I indicated in my ruling on August 21st, 2020, this is not a land claim. The time for that with respect to these lands has long since passed. There are other venues to assert claims for compensation. However, this case is not the proper time and place that the defendants can make those claims. Certainly, they should not be able to do so when they are in open defiance of the Court and its process. The defendants have chosen a path that, in my view, is in fact an abuse of process. [Emphasis added.]

[51] In addition to striking Mr. Williams’ statement of defence to the permanent injunction, the motion judge also struck Mr. Williams’ third party actions and notice of Constitutional questions against Canada and Ontario. Accordingly, Mr. Williams not only lost the opportunity to raise constitutional objections to the contempt and abuse of process findings, and with respect to the injunction, the motion judge also precluded Mr. Williams from arguing that either or both Crown third party defendants should be responsible for any costs flowing from his involvement in the main action, among other arguments.

[52] The motion judge erred by making this order on the basis of an abuse of process without providing Mr. Williams a fair opportunity to be heard.

Conclusion

[53] In light of this analysis, Mr. Williams was denied fairness in the following ways:

• The motion judge did not take appropriate steps to put Mr. Williams on notice as to the exact nature of the proceeding against him (whether contempt, abuse of process, or both), and the criteria to be considered in that proceeding;
• The motion judge did not provide particulars of the exact conduct in issue (whether Mr. Williams status as the “leader” of the protestors, or his own conduct);
• The motion judge did not set out for Mr. Williams the potential consequences of his impugned conduct, including exposure to costs;
• The motion judge did not give Mr. Williams an opportunity to consult with and retain counsel in respect of the contemplated order before the motion judge actually made the order; and
• The motion judge did not give Mr. Williams an opportunity to respond to the particular allegations against him before making any order.

[54] The requirements of fairness in the context of this proceeding constituted an independent right of Mr. Williams. It is no answer to the denial of these rights to say a fair opportunity to be heard would have made no difference in the outcome. As Le Dain J. stated in Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, at p. 661:

I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.

[55] The narrow exception to this principle carved out in Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, at p. 228, does not apply here, as there was no inevitable outcome to these proceedings. Consequently, the order striking Mr. Williams’ pleadings must be set aside.

[56] While these conclusions are sufficient to dispose of the appeal, I will briefly address Mr. Williams’ other grounds of appeal.

Was the motion judge obligated to consider appointing an *amicus curiae*

[57] Mr. Williams submits that the motion judge should have considered appointing a lawyer as an amicus curiae once it was clear that Mr. Williams was self-represented and in light of the motion judge’s candid reflections on his own challenge in maintaining impartiality.

[58] Mr. Williams points to the motion judge’s explanation of his challenge in his reasons from October 16, 2020, when he stated:

[40] Ethical duties of judges require judges to assist in informing self-represented litigants of the process without impacting the judge’s ability to be an impartial decision-maker that is difficult at the best of times. In this case, it is a herculean task, if not an impossible one. In this case, Mr. Williams comes to Court with a view that he does not belong in this Colonial Court and that he will disobey any orders that the Court makes. [Emphasis added.]

[59] The appointment of an amicus curiae is a rare step, wholly within the discretion of the presiding judge: see Morwald-Benevides v. Benevides, 2019 ONCA 1023, 148 O.R. (3d) 305, at paras. 22-23, 37.

[60] In my view, the motion judge did not commit any error in failing to consider the appointment of amicus counsel to advise the Court. At no point did the motion judge conclude that he lacked the requisite impartiality to decide the motion fairly. While amicus counsel could have been helpful in advising the motion judge on the proper process to follow in a contempt or abuse of process motion, this was simply one of several tools at the motion judge’s disposal. There was no legal obligation on the motion judge to consider or pursue this option.

[61] I note that, given that Mr. Williams was self-represented, and that the motion at issue was by the court and so lacked an adversarial context, counsel for the respondents also could have provided guidance to the motion judge on the procedural protections to which Mr. Williams was entitled. Indeed, counsel for Foxgate advised the motion judge that, in his role as an officer of the court, his position was that “the Court always has jurisdiction to use its inherent jurisdiction, its authority under the rules and under the Courts of Justice Act and under common law principles to deal with abuse of process.”

Was the award of costs unreasonable?

[62] In light of the motion judge’s error in conflating contempt and abuse of process, and denying Mr. Williams a fair opportunity to be heard, the motion judge’s orders on appeal must be set aside. Consequently, the award of costs by the motion judge will also be set aside.

[63] While unnecessary to examine the cost awards in detail, it will suffice to say the motion judge’s cost awards against Mr. Williams in favour of Foxgate (in the amount of $117,814.18 inclusive of fees, disbursements and HST) and Haldimand (in the amount of $49,479 plus HST of $870.67) were problematic for three reasons.

[64] First, the costs ordered include time spent by the respondents on the injunction motion prior to Mr. Williams being added as a party to the proceeding on August 25, 2020. I do not see how Mr. Williams could reasonably be responsible for costs pre-dating his involvement.

[65] Second, the quantum of costs appears inordinate, particularly given the duplication in the arguments by the two respondents, the absence of any adversarial context, and the fact that Mr. Williams was self-represented.

[66] Third, because of the motion judge’s decision to disallow Mr. Williams’ participation in the motion, the decision on costs was made without any opportunity for Mr. Williams to make submissions on the issue. This denial of fairness taints the motion judge’s decision on costs. Additionally, the motion judge referred to Mr. Williams’ admission of contempt as well as his (and his followers’) contemptuous conduct as factors considered in finding that Mr. Williams had acted in bad faith, and in the calculation of the costs award: see the October 29, 2020 reasons, at paras. 129-130.

[67] If it were necessary to do so, I would find the motion judge erred in principle in making the costs award against Mr. Williams.

Disposition

[68] As a result of the motion judge’s error in conflating contempt and abuse of process, and the denial of a fair opportunity to Mr. Williams to be heard, the motion judge’s orders granting the permanent injunction and striking Mr. Williams’ pleadings in the action are set aside.

[69] The cost awards imposed by the motion judge against Mr. Williams are also set aside. Costs relating to the proceedings before the motion judge, if any, will be left to the judge who ultimately hears these matters to determine. In all the circumstances, this should be a different judge than the motion judge.

[70] The parties have agreed that the successful party on this motion would receive costs of $20,000, all-inclusive. Therefore, the respondents will together pay costs of $20,000 to Mr. Williams (to be apportioned between the respondents as they determine), payable within 30 days of the release of these reasons.

Released: December 21, 2021 “D.D.” “Sossin J.A.” “I agree. Doherty J.A.” “I agree. B.W. Miller J.A.”