2016 ONSC 1733

COURT FILE NO.: CV-15-144

DATE: 2016/03/16

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

McCLUNG PROPERTIES LTD Plaintiff

-and-

HAUDENOSAUNEE CONFEDERACY CHIEFS COUNCIL, HAUDENOSAUNEE DEVELOPMENT INSTITUTE, WAYNE HILL, JANE DOE, JOHN, DOE, or any agent or person acting under their instructions, and other persons unknown, and THE CORPORATION OF HALDIMAND COUNTY Defendants

BEFORE: Turnbull, J.

COUNSEL: P. DeMelo and Rahul Shastri for the plaintiff W. McKaig for the defendant The Corporation of Haldimand County S. Draper and Linda Johnson, registered paralegals for the Moving Parties. No one appearing for the defendants other than The Corporation of Haldimand County.

HEARD: February 9, 2016

ENDORSEMENT

[1] The moving party is Hodiskeagehda which in English is known as the Men’s Fire of the Six Nations of the Grand River Territory (“Men’s Fire”). It seeks two heads of relief:

a. to be added as a party to these proceedings.

b. an order varying the terms of an injunction granted by Flynn J. on October 27, 2015 regarding the plaintiff’s property.

[2] Counsel for the parties responding to this motion agreed that Men’s Fire be added as a party and accordingly, it is so ordered.

[3] While not referred to in the Notice of Motion, I have treated this motion as being brought under rule 37.14 of the Rules of Civil Procedure.

[4] Counsel for the plaintiff further sought an order that the legal description of the lands at issue be amended to properly reflect the complete legal description of the lands as depicted in the area outlines in the aerial map attached as part of Schedule “A” to the orders of Kent J. and Flynn J. It is so ordered.

Background of the Issue:

[5] The plaintiff has assembled approximately 215 hectares of land just east of the Town of Caledonia (“the Lands”) which it proposes to develop for over 3,000 residential dwellings and associated uses, including schools, parks and commercial uses. The applications as submitted to the appropriate municipal and provincial authorities propose the development of a master planned community on the lands.

[6] Pursuant to the requirements of the Grand River Notification Agreement (“GRNA”), copies of the plaintiff’s planning application and all supporting documents were submitted to First Nations community Band Councils for their comment and input. The elected Band Councils of the Six Nations of the Grand River and the Mississaugas of the New Credit are familiar with the proposal and did not file any objections at any stage of the complicated and thorough development approval process. The members of Men’s Fire, who the court was advised constitutes about 50 people, are members of the Six Nations of the Grand River.

[7] As part of the approval process for a draft plan of subdivision, there are conditions which must be satisfied prior to registration of the plan of subdivision. One of the conditions required that prior to final approval, the plaintiff obtain a satisfactory archaeological assessment indicating that the Lands are not areas of cultural or heritage significance. In particular, it was ordered that no demolition, grading or other soil disturbances other than those required for archaeological assessment shall take place on the subject property prior to the approval authority and the Ministry of Tourism, Culture and Sport (“MTCS”) confirming that all archaeological resource concerns have met licensing and resource conservation requirements.

[8] The plaintiff retained a consulting firm to conduct the necessary assessments and to complete the required reports. Part of the Lands had previously been assessed in this manner by prior owners and the results were accepted by the MTCS. Those findings determined that the Lands assessed did not constitute areas of cultural or heritage significance.

[9] As part of the plaintiff’s archeological assessment, it entered into agreements with representatives of both the Six Nations of the Grand River and the Mississaugas of the New Credit First Nations to have representatives of the relevant First Nations communities on site to assist with and monitor the additional investigations. Counsel for the plaintiff emphasized that monitoring by representatives of the First Nations communities is not required by provincial guidelines, but the plaintiff agreed to engage those communities in the project.

[10] On May 19 and 20, 2015, the plaintiff’s consultants, along with monitors from the Six Nations of the Grand River and the Mississaugas of the New Credit attended on the Lands to conduct the further required archeological assessments. In affidavits filed with the court and considered by Flynn J., it was alleged that on the afternoon of May 20^th, representatives of the named defendant Confederacy Council attended on the Lands demanding the plaintiff to cease all investigations immediately and to retain them as additional monitors. Despite being aware that representatives of the First Nations communities were already involved in the assessment, the representatives of the Confederacy Council refused to the leave the property (which is private property owned by the plaintiff) and advised that they would be calling additional members to the Lands to further their point and ensure that operations were halted. Ultimately, officers from the Ontario Provincial Police were called to the Lands and only then did the representatives of the Confederacy Council cease their intimidation of the consultants and the monitors on site and agree to leave the Lands.

[11] In September 2015, the plaintiff agreed with the MTCS to conduct a Stage 2 archeological assessment with respect to certain of the Lands to be included in the first phase of the development. A Stage 2 assessment requires that the lands to be investigated be ploughed and disked in accordance with specific requirements, followed by a pedestrian survey by observers at specified intervals. The objective is to identify any items of archaeological significance which may exist and consequently warrant a Stage 3 or Stage 4 assessment.

[12] The plaintiff retained another consulting group to conduct that further archeological work. Again, while not required to do so, the plaintiff invited representatives from the Six Nations of the Grand River and the Mississaugas of New Credit to participate in this further investigation.

[13] An affidavit filed with the court on the injunction hearing was sworn by Robert MacDonald on October 13, 2015 (the Assistant Managing Partner of the consulting firm conducting the Stage 2 assessment) and put before Flynn J. Mr. MacDonald swore that between October 6 and 8, 2015, while the Stage 2 assessments were being undertaken, individuals including the named defendant Wayne Hill attended several times on the Lands and purported to represent the Confederacy Council. Mr. MacDonald swore that their intention was to disrupt and halt operations, to intimidate those engaged in the archaeological assessment, and to impede access to and from the Lands. It was suggested to those lawfully participating in the assessment that if they did not stop, “then you will have a problem.” Individuals were observed removing markers placed to identify areas of investigation. Mr. MacDonald swore that these activities made it impossible to proceed with the archaeological investigation.

[14] An ex parte interim injunction was granted by Kent J. on October 14, 2015 which ordered that the respondents were, inter alia, prohibited from interfering with or otherwise trespassing on the Lands.

[15] By order of Flynn J. dated October 27, 2015, the order of Kent J. was extended, pending trial or further order of this court. The order of Kent J. restrains any person or persons from, in any way, engaging in the following acts:

• obstructing the access to the Lands for the purposes of preventing the plaintiff or its employees or agents, or the plaintiff’s contractors or subcontractors, or their agents, from using the Lands,
• hindering, interfering with, intimidating, physically obstructing or otherwise impeding the operations of the plaintiff or its employees or agents, or the plaintiff’s contractors or subcontractors, or their agents, in the performance of any work relating to the development of the Lands, including without limitation any archaeological assessment, related to the Lands, until the trial of this matter or until such time as this court may direct.

[16] When the matter was before Flynn J., a representative of Men’s Fire attended but made no submissions on the matter. The matter was further adjourned to the week of November 16^th, 2015, at which time Men’s Fire attended in court seeking to amend the order of Flynn J. Gordon J. dismissed the motion and confirmed that the order of Flynn J. continue. As far as I know, no appeal was taken from the order of Gordon J.

[17] The moving parties on this motion wish to have the order of Flynn J. varied “to prevent any further disturbances, evaluations or development work by the plaintiff or by such others as may be contracted by, or on behalf of, the plaintiff as regards the property in question.”

[18] In other words, the moving parties wish to have the interlocutory injunction dissolved.

[19] In her submissions, Ms. Draper explained that the subject lands lie within the Haldimand Tract. It is an area of land extending six miles from each shoreline of the Grand River. The Haldimand Tract was the subject of the Haldimand Proclamation of 1784 and the subject of Lord Simcoe’s Patent of 1793. In Issac v Davey (1975), 1974 40 (ON CA), 5 O.R. (2d) 610 (C.A.), the Court of Appeal exhaustively reviewed the history of this land and determined that the combined effect of these documents did not vest title in the Six Nations People. Since that time, the Six Nations have brought a legal action in which they do not make a legal claim for possession of or return of the land but rather, they seek an accounting for all the revenues the Six Nations people should have received from the land.

[20] In the case at bar, there is no challenge to the validity of the plaintiff’s title to the property.

[21] There are four grounds put forward for the relief sought. They are:

1. The plaintiff did not give full disclosure to the Court at the time the earlier injunctions were granted.
2. The Lands are subject to a registered land claim by the First Nations people. Ms. Draper acknowledged in her submissions that this is not correct and is an unfounded assertion.
3. The plaintiff did not comply with legislation and governmental land use policies.
4. The plaintiff and the court have disregarded the constitutionally protected Onkwehonwe (Native) rights. The plaintiff and approving municipal and provincial authorities have failed to consult with the Onkwehonwe Peoples as required by the Federal Government.

[22] I will deal with each of those issues as listed. I have relied heavily on the excellent factum provided by counsel for the plaintiff in rendering these reasons and borrowed liberally from the summation of issues contained therein.

Issue #1 and #2: Lack of Full Disclosure to the Court.

[23] I have reviewed the motion record before Kent J. and Flynn J. and find that there has been full and proper disclosure to the court of relevant facts to found the order presently existing. The moving party has not filed an affidavit on this motion and hence there is no evidence indicating that material facts were not disclosed to the court. Furthermore, there has been no cross examination of the deponents of those supporting affidavits undertaken before the argument of this motion.

[24] Men’s Fire has provided no evidentiary basis upon which any rights to the Lands could arise in favour of the defendants or Men’s Fire in the appearances before Flynn J., Gordon J. and this court.

[25] In paragraph one of the materials filed by Men’s Fire on this motion, it is alleged that the plaintiff did not reveal to the court that the Lands are part of an active land claim, which was registered properly against title in 1999. The only material filed by Men’s Fire in support of this submission is a partial copy of the Parcel Register for Property Identifier 38155-0041 (LT). The materials identify a Notice of Claim but do not include a copy of the actual Notice of Claim.

[26] There is no Notice of Claim registered against title to the Lands relating to any land claim as alleged by Men’s Fire. The Notice of Claim, which has been identified, is in fact a notice of claim in favour of Haldimand Hydro-Electric relating to a public easement across part of the Lands for the purpose of providing hydroelectric services and has no relation to any land claim by any first nations group. Ms. Draper acknowledged that her clients were mistaken in the assertion made in their papers filed with this court.

[27] Men’s Fire alleges in their materials that the plaintiff failed to inform the court that the GRNA had been modified. In my view, that is not relevant. The GRNA which was referenced in the original materials tendered by plaintiff before this court is the most current form of the GRNA. The GRNA continues to govern the manner in which planning applications and information relating to same are circulated amongst the Province, various municipalities, the Six Nations of the Grand River and the Mississaugas of the New Credit. Men’s Fire is not a party to the GRNA and is not recognized by the Corporation of Haldimand County (“County”) as the representative body of the Six Nations of the Grand River or the Mississaugas of the New Credit. I agree with the plaintiff’s counsel that the fact that the Federal Government has elected not to remain a party to the GRNA is immaterial to these proceedings and does not alter the manner in which the information required to be shared as part of any planning application is provided.

[28] In the materials filed by Men’s Fire, there is a suggestion, but not a sworn affidavit, that there was no urgency in terms of bringing the injunction. I note that Men’s Fire has not provided this court with a sworn affidavit refuting the conduct that undoubtedly convinced the presiding judges that an injunction should be granted. The affidavits of Mr. Auduong and Robert MacDonald identify that despite efforts to conduct works on the Lands, and in particular complete archaeological assessments with the assistance of monitors from the Six Nations of the Grand River and Mississaugas of the new Credit, some of the named defendants have repeatedly attempted to interfere with, intimidate and impede such work from proceeding. Following the grant of the ex parte injunction and the extension of the same, this matter has returned to court on two occasions.

[29] Ms. Draper referred to the materials filed by Men’s Fire in which it is suggested that the plaintiff failed to disclose a material fact to the court when it did not advise that it had an appeal before the Ontario Municipal Board to determine whether or not any further archaeological work was required. The appeal before the Ontario Municipal Board sought to have the condition of a draft plan approval modified to reflect that the MTCS must accept and acknowledge archaeological reports in relation to portions of the Lands that have previously been accepted by the MTCS. Mr. Auduong’s affidavit of February 2, 2016 states that once MTCS had acknowledged the prior reports, the hearing of the appeal was adjourned and work was allowed to continue on those portions of the Lands for which reports had not yet been accepted. I do not think this constituted non-disclosure of relevant facts to the court when the injunction orders were granted. It is clear that at the time of the conduct leading to the injunction application, the work was proceeding lawfully with the approval of provincial authorities.

Issue #3: Non-compliance with legislation and governmental land use policies.

[30] Men’s Fire alleges in its materials filed on this motion that the plaintiff has not fulfilled all requirements for the approval of its application for subdivision. That is directly contrary to the evidence of Michael Auduong contained in two affidavits sworn October 13, 2015 and February 2, 2016. He was not cross examined on either affidavit and the moving party did not file sworn affidavits challenging his evidence. From the record before this court, it appears that the plaintiff has fulfilled all requirements for the approval of the draft plan of subdivision and has submitted all required information prior to approval by the County. The assertions raised by Men’s Fire were never identified by Men’s Fire, or by any other individual, provincial ministry, municipal department, staff or reviewers during the application process.

[31] In paragraph 14 of the materials filed by Men’s Fire, there is a suggestion that the applications for the draft plan of subdivision have not complied with any necessary assessment for agricultural lands. At paragraph 14 of his affidavit sworn February 2, 2016, Michael Auduong swore that the staff of the Ministry of Agriculture, Food and Rural Affairs (“OMAFRA”) has commented that the Lands are appropriate to redesignate for urban uses based on the fact that they exist within the Caledonia urban boundary. As such, any policy relating to preserving and protecting agricultural land do not apply.

[32] The moving party has not identified any legislation with which the plaintiff has not complied or any planning approval policies or regulations which it has ignored or abrogated.

Issue #4: The plaintiff and the court have disregarded the constitutionally protected Onkwehonwe (Native) rights. The plaintiff and approving municipal and provincial authorities have failed to consult with the Onkwehonwe Peoples as required by the Federal Government.

[33] In Haida Nation v B.C. (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 at paras. 17 and 18, the Supreme Court of Canada held that the duty of the Crown to consult with and accommodate Aboriginal peoples is founded in the concept of the honour of the Crown. The Crown is bound to act honourably in all its negotiations and dealings with Aboriginal peoples. At paragraphs 52 to 56 of that decision, the Supreme Court held that the duty to consult was the duty of the Crown, not the duty of a third party land owner.

[34] In Haida, the Court also stated that the duties that arise for the Crown to consult and accommodate varies with the circumstances. Generally speaking, that duty is proportionate to the strength of the case supporting the existence of a right or title, and to the seriousness of the interference with the ownership rights of the registered owner of the property. At paragraphs 43 and 44, the Court noted:

At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issue raised in response to the notice…..

[35] That is the very situation at hand. The Aboriginal right is very limited in this case as there is no land claim against the property in question. The legal claims relate to damages only. The provincial legislation has required that the Bands affected be provided with detailed information relating to the proposed project. No objections were filed.

[36] I further find that there is no constitutional duty in these circumstances for the Corporation of Haldimand County to consult with Men’s Fire. In the case of Neskonlith Indian Band v Salmon Arm (City), 2012 BCCA 379, [2012] B.C.J. No. 1959, the court in detailed reasons articulated the principle that municipal governments do not have a duty to consult even if it may in certain circumstances be in the best position to provide an “effective remedy” (para. 66).

[37] Men’s Fire has provided no authority to indicate that the plaintiff has a positive duty to consult with them. Clearly, consultation has taken place with the elected Band Councils of the Six Nations of the Grand River and the Mississaugas of the New Credit. Prima facie, the plaintiff is entitled as a registered landowner to develop his land lawfully.

[38] In paragraph 2 of the materials filed by Men’s Fire, there is an allegation that the injunction is an attempt to restrain the defendants from use or access to the Lands allegedly provided through their rights pursuant to section 35 of the Constitution Act, 1982. There is no support provided for this assertion. The Constitution applies to govern the relationship between the Crown, Crown agencies and individuals to protect individuals from arbitrary actions of the Crown. It does not govern the rights and relationships between private parties or individuals, such as the plaintiff and the Onkwehonwe people. In RWDSU v Dolphin Delivery, 1986 5 (SCC), [1986] 2 S.C.R. 573., McIntyre J. writing for the court found at page 593 that the Charter “was intended to restrain government action and to protect the individual. It was not intended in the absence of some government action to be applied in private litigation.”

[39] The materials filed by Men’s Fire suggest that there are federally mandated consultation requirements that apply to individuals or entities that are neither the Crown nor Crown agencies. I reject that submission. First, the moving party has filed no materials to support such a statement. Such an assertion would seek to apply the Crown’s duty to consult to individuals or private parties such as the plaintiff. Secondly, the reference to the Consultation and Accommodation Unit (Schedule “C”) in the papers of Men’s Fire relates to Guidelines for Federal Officials to Fulfill the Duty to Consult. The Schedule is not applicable to individuals who are neither Federal, Provincial or Territorial departments and agencies.

[40] Paragraph 17 of the materials filed by Men’s Fire speaks to consultation requirements stipulated by the Ontario Ministry of Aboriginal Affairs. The excerpt identified by Men’s Fire is incomplete and the conclusion, which they have attempted to draw from the excerpt, is inaccurate. The consultation requirements identified apply only in the context where works require an environmental assessment to be completed under the Environmental Assessment Act, R.S.O. 1990, c. E.18. Mr. Auduong’s uncontradicted affidavit states that the development of the Lands by the plaintiff is not a matter that requires an environmental assessment. It is not a matter that has been designated by the Ministry as requiring an environmental assessment nor is there any agreement requiring one.

[41] The test for granting an injunction is well established. The Supreme Court of Canada has provided a three-part test for granting an interlocutory injunction (see RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] S.C.J. No. 17, at para. 43):

1. A Serious Question to be Tried

A preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. The applicant must show that the claim presents a serious question to be tried as to the existence of the right alleged and a breach thereof – actual or reasonably apprehended. It would suffice if an applicant could satisfy the court that ‘the claim is not frivolous or vexatious.’ The threshold is a low one. There are no specific requirements which must be met in order to satisfy this test (at paras. 43, 44 and 49).

2. Irreparable Harm

The applicant would suffer irreparable harm if the application were refused. The only issue to be decided is “whether a refusal to grant relief could so adversely affect the applicants’ own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application.” “Irreparable” refers to the nature of the harm suffered rather than its magnitude – it is harm which cannot be quantified in monetary terms or cannot be cured (at paras. 58 and 59).

3. Balance of Inconvenience and Public Interest Considerations

An assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. The factors to be considered in assessing the “balance of inconvenience” vary in each case (at para. 63).

4. The Public Interest Factor

The public interest in all constitutional cases is a ‘special factor’ which must be considered at this stage. While each party is entitle to inform the court of the damage it might suffer, they may also “tip the scales of convenience in its favour by demonstrating to the court a compelling public interest in the granting or refusal of the relief sought.” Public interest includes both societal concerns in general and particular interest of identifiable groups. When a private applicant alleges that the public interest is at risk, the harm must be demonstrated (at paras. 64, 66 and 68).

[42] Based on the record before the court and the issues articulated by the parties, I do not see an ascertainable error in the decisions of Kent J. or Flynn J. in granting the injunctive relief which the Men’s Fire wish now to have varied.

[43] Pursuant to rule 37.14(2) of the Rules of Civil Procedure, the court may set aside or vary an order on such terms as are just. On a rule 37.14(1)(a) motion, the moving party must establish that the order sought to be varied directly affects the rights of the moving party in respect of the proprietary or economic interests of the party (see Ivandaeva Total Image Salon Inc. v. Hlembizky (2003), 2003 43168 (ON CA), 63 OR (3d) 769, at para. 27 (C.A.)).

[44] An order under rule 37.14(2) is discretionary in nature. A contextual approach that seeks to balance the respective interests of the parties is required. The court must consider and weigh all relevant factors to determine the order that is just in the circumstances of the particular case (Wellwood v. Ontario Provincial Police, 2010 ONCA 386, 102 O.R. (3d) 555, at paras. 19-20). A contextual analysis is appropriate because rule 37.14 invites the court to set aside or vary the order on “such terms as are just” (see Traders General Insurance Co. v. Iskenderov, [2009] O.J. No. 3732, at para. 31 (Sup. Ct.)). There is no list of enumerated criteria that the court must consider in engaging in the contextual analysis required on a motion to vary.

[45] In the context of the evidence before the court on this motion, I am not prepared to vary the order. The plaintiff owns the subject property. There is no outstanding registered land claim against the property by First Nations people. I am advised that there is a damages claim with respect to the Haldimand Tract in which the property is located but any interest can be compensated with damages. Men’s Fire has not filed affidavit evidence that if the order was varied, they would not then block access to the property and otherwise obstruct the plaintiff and its employees, agents and contractors from performing work to allow the project to proceed.

Conclusion:

[46] The motion to vary the order of Flynn J. dated October 27, 2015 is dismissed.

[47] Hodiskeagehda, also known as the Men’s Fire of the Six Nations of the Grand River Territory, shall be added as a party to these proceedings.

[48] It is ordered that the legal description of the Lands be amended to properly reflect the complete legal description of the Lands as depicted in the area outlines in the aerial map attached as part of Schedule “A” to the orders of Kent J. dated the 14^th day of October 2015 and Flynn J. dated the 27^th day of October 2015.

[49] The plaintiff and the Corporation of Haldimand County are entitled to their costs on a substantial indemnity basis. Brief written submissions are to be provided to my office at the John Sopinka Courthouse in Hamilton, Ontario on or before April 1, 2016 with appropriate costs summaries. A reply to those submissions is to be provided by Men’s Fire on or before April 20, 2016.

Turnbull, J.

Date: March 16, 2016