ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-239
DATE: 2013/10/04
BETWEEN:
THE CORPORATION OF HALDIMAND COUNTY
W. McKaig, for the Applicant
Applicant
- and -
DEREK SANDY and NOLAN HILL a.k.a. OBES HILL and/or JOHN DOE
K. Hensel, for the Respondents
J. L. Wall, for Ontario
Respondents
HEARD: October 3, 2013
The Hon. Mr. Justice Arrell
ENDORSEMENT
Introduction:
[1] The applicant has brought an application for an interlocutory and permanent injunction restraining the respondents from operating a hamburger stand and smoke shop on the lands in question. That particular motion has been adjourned sine die to allow for filing of additional material by the respondents if so advised and to allow for cross examination of various affiants.
[2] The respondents have brought a motion to have Her Majesty the Queen in Right of Ontario added as a party.
[3] Ontario opposes the motion on the basis that Ontario is not a party that is required to allow this court to make a determination regarding the injunction request. The County supports Ontario in its position.
Analysis:
[4] The two buildings in question are on land owned by Ontario near the Town of Caledonia.
[5] The smoke shop has been operating since 2007. The hamburger stand is a much more recent development.
[6] The application by the County was started relatively recently. It seeks an injunction on the basis that both buildings operated by the respondents, who are Six Nations status Indians under the Indian Act, are in contravention of the County’s zoning by-law, and various building code by-laws. It is admitted this application was brought in conjunction with an application by the County Health Unit which is seeking to close the hamburger stand for various breaches of the Health Protection and Promotion Act. That motion has also been adjourned sine die.
[7] The respondents urge me to find that Ontario is a necessary party. They have raised various issues which they assert will be argued in this motion such as ownership of the land, which the Six Nations claims is theirs; the duty to consult; the applicability of municipal by-laws and provincial statutes to lands over which the Six Nations assert treaty rights; and of course the rule of law when injunctions involving aboriginal treaty rights may be involved. The respondents argue that it is essential that Ontario be a party when such issues are before the court.
[8] Ontario argues none of these issues have any merit and therefore it is not required to participate in this hearing. I disagree.
[9] I make no determination as to the merit of any of the issues raised by the respondents. That is for another day, with a complete record and full submissions.
[10] It does appear, however, that the respondents have made these items issues and until there is a determination of whether they have any merit the province must be involved because these issues directly affect it.
[11] This court is entitled to full submissions from all parties it feels has an interest in the issues before it. Ontario is such a party.
[12] This court also concludes, perhaps even more importantly, that as Ontario is the owner of the land it clearly has a significant interest in this motion. This may be even more important when it appears that Ontario, as owner of the land, had done nothing since 2007 to ensure that those using its land obey various municipal and provincial laws.
Conclusion:
[13] The motion to add Ontario as a party is granted.
[14] Costs of this motion will be in the cause and in the discretion of the trial judge.
ARRELL, J.
Released: October 8, 2013
COURT FILE NO.: CV-13-239
DATE: 2013/10/04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE CORDPORATION OF HALDIMAND COUNTY
Applicant
- and -
DEREK SANDY and NOLAN HILL a.k.a.
OBES HILL and/or JOHN DOE
Respondents
ENDORSEMENT
ARRELL, J.
Released: October 8, 2013