COURT FILE NO.: CV-20-32
DATE: August 21, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
FOXGATE DEVELOPMENTS INC.
Plaintiff (Applicant)
P. DeMelo, Counsel for the Plaintiff
- and -
JANE DOE, JOHN DOE, or any agent or person acting under their instructions, and other persons unknown, and THE CORPORATION OF HALDIMAND COUNTY
Defendants (Respondents)
HEARD: July 30, 2020
ENDORSEMENT
THE HONOURABLE JUSTICE r. j. harper
Chronology
[1] There are two actions and motions for interlocutory injunctions before this court. Although they are separate actions, the factual basis for both are interconnected. The legal considerations are also substantially connected. As a result, I will deal with both matters in this judgment. However, orders will be issued separately within the distinct actions.
[2] The Plaintiff, Foxgate Developments Inc. (herein referred to as Foxgate) brought an application and an ex parte motion within that proceeding. That Court File Number, being: CV-20-32.
[3] On July 30, 2020 I granted an interim injunction to Foxgate. The motion for an interlocutory injunction and my interim order were made returnable on August 7, 2020 at 9:30 a.m. by way of a virtual Zoom hearing. This would allow time for the notice of the order and motion to be posted and read publicly. Anyone who wished to respond to the motion would then have an opportunity to notify the parties and the court. An email address to send any notification to the court was contained in the order.
[4] On August 6, 2020 the Corporation of Haldimand, named Defendants in the above action as Haldimand County (herein referred to as Haldimand) brought an application, the Court File Number being: CV-2000000032-000. In addition, they also brought an ex parte motion for an injunction to, among other things, prohibit anyone from preventing access and use of public highways and roadways in the Haldimand County catchment area. I made that motion returnable on August 7, 2020 at 9:30 a.m.
[5] On the return of the motions, only Foxgate and Haldimand had material before the court. I received the evidence on the Haldimand motion and granted their request for an interim injunction.
[6] At the same time, I extended the interim injunction of Foxgate and made it further returnable on August 25, 2020.
[7] The following represent my written reasons for granting both interlocutory injunctions. For the purposes of these reasons, I will be referring to the evidence in both motions. As stated above, I find that the body of facts are related to the same series of events and it would be an unnecessary duplication to have to deal with them separately. It should also be pointed out that Foxgate supports the motion of Haldimand and Haldimand supports the motion of Foxgate.
[8] On August 7, 2020 no material was filed in response to either motion. No one expressed any intention to defend either the motions or the applications.
[9] In addition to the known parties, their counsel and a representative of the media, a number of individuals attended the virtual Zoom hearing on August 7, 2020. They identified themselves as observers.
The Issues
(I) The Foxgate Motion
[10] There are two central issues on this motion:
[11] First, whether to grant an interlocutory injunction, pending the trial of the action, enjoining the Defendants from in any way impeding with, interfering with, intimidating or otherwise obstructing access to certain lands owned by Foxgate or its employees or agents, contractors or subcontractors, or their agents, from using these lands, until the trial of this matter or until any further order of this court.
[12] Second, the motion further seeks an order requiring the Defendants to cease and desist their unlawful trespass and that any peace officer assist in the execution of the orders sought herein, including the removal of any persons who refuse to obey the provisions of the interlocutory order that may be granted.
(ii) The Haldimand Motion
The Central Issues
[13] Whether or not the court should grant an interim/interlocutory order as follows:
a. Requiring the Individual Respondents to tear down and remove any barricades or other obstructions placed, constructed or maintained by them, on Argyle Street, 6th Line, the Highway 6 bypass and McKenzie Road that may create an obstruction to access to the said roads.
b. Requiring the Individual Respondents to vacate the blockaded areas on Argyle Street, 6th Line, the Highway 6 bypass and McKenzie Road referenced in the Affidavit of Cathy Case forthwith.
c. Restraining the Individual Respondents and their servants or agents, whose identity is unknown, or anyone having notice of this Order from blockading, barricading, occupying, controlling or attempting to control access to or passage through, interfering with the use of by any person of, hindering, obstructing or impeding access to, any public highway, street, road or road allowance located in Haldimand, including Argyle Street, 6th Line, the Highway 6 bypass and all roads described in Schedule A (“the Subject Lands”).
Background
[14] Foxgate is the owner of lands that are municipally known as 1535 McKenzie Road, in the County of Haldimand. The lands are legally described as:
PT LT 3 RANGE WEST OF TOWNSEND TO CALELDONIA ROAD, GEOGRAPHIC TOWNSHIP OF ONEIDA, NOW HALDIMAN COUNTY, DESIGNATED AS PARTS 1-10 INCL. 18R-6318, S/T EASEMENTS AS IN 06293, HC3242, HC 119162 & HC119163, PIN 38168-0390 (LT) (the “Lands”).
[15] The Lands were acquired by Foxgate on September 9, 2015. There are two Notice of Claims on the title. They both refer to claims of interest in the Lands by Ontario Hydro and Union Gas that provide access and the right to enjoy and use the Lands specifically identified as utility corridors.
[16] After a review of the uncontested affidavit evidence filed by the Foxgate in these proceedings, and filed by Haldimand on August 6, 2020 in their proceedings, I make the following findings of fact:
From 2003 to 2015
[17] A different development was being advanced on the same lands. In order to advance this development, all applications that were required under the Planning Act, R.S.O. 1990, c. P.13 and other building, municipal and County by-laws were published and processed. This development, however, did not proceed to completion.
September 9, 2015
[18] On September 9, 2015 Foxgate acquired title to the Lands. Other than notices of hydro and gas rights of way, there were no other claims registered on the title to the lands.
From September 9, 2015 to December 16, 2016
[19] From the time that Foxgate became the titled owner to the Lands, they pursued all the necessary legal requirements in order to development the Lands. This process included:
d. Making an application for zoning by-law amendments and submitted a draft plan of subdivision. This process included:
i. Public meetings and requests for comments from any interested parties in accordance with the Planning Act.
ii. As a result of Haldimand having an agreement with the Six Nations of the Grand River and the Mississaugas of New Credit to notify them of pending developments, they were specifically notified of Foxgate’s planned development.
iii. Pursuant to the agreement mentioned above, Haldimand circulated the applications, supporting documentation and reports to the Six Nations of the Grand River and the Mississaugas of New Credit.
January 24, 2017
[20] All approvals pursuant to the Planning Act were obtained by Foxgate following the completion of the public process noted above. No one appealed any of the approvals.
[21] A declaration of the Notion of Adoption of the Approval of the Draft Plan of Subdivision was issued on January 24, 2017.
Archeological Investigation
[22] Foxgate entered into an agreement with the Six Nations of the Grand River and the Mississaugas of New Credit that allowed them to participate and assist in an archeological investigation of the approved development site. This investigation was completed and there was a finding that there were no areas of concern that would have any impact on the development.
From September 2015 to May 2019
[23] No one gave any notice to the developers of Haldimand that there was any potential or existing land claim by any indigenous community.
May 2019
[24] In May 2019, Foxgate entered into an agreement titled: “Definitive Agreement” with the Six Nations Elected Counsel (“SNEC”) and the Mississaugas of New Credit. This agreement called for the transfer of a parcel of approximately 42 acres of land to the Six Nations of the Grand River. The SNEC was also given the sum of approximately $325,000 to be held in trust for land development for Six Nations.
From the Fall of 2018 to July 20, 2020
[25] Foxgate partners, Losani Homes and Ballantry Homes, started to sell new homes pursuant to the approved plan of subdivision. Any agreements were to have a November 2020 closing date. By July 20, 2020, one hundred and seventy-six (176) agreements of purchase and sale had been entered into.
[26] In May 2020, service contractors began working on the Lands to install services including sewers, water, roadways. By July 20, 2020 much of the service contract had been completed. Up until July 20, 2020 there were no complaints or claims against the property or the development to Foxgate, its agents or contractors, or to Haldimand.
July 20, 2020
[27] On July 20, 2020, approximately 12 people attended on the Lands. They did not have permission to be on the Lands from Foxgate or any of its agents or contractors. They continued to occupy the Lands and proceeded to cause significant damage to the heavy equipment of the service contractors. They spray bombed some of the heavy equipment, painted the phrase “1492 Land Back Lane” on a large construction container on the Lands and planted Six Nation Flags on the Lands and heavy equipment.
Injunctive Relief
[28] On July 30, 2020 I granted an interim injunction in favor of Foxgate that, among other things, required all persons not authorized by the Foxgate its agents and contractors to be on the Lands to vacate the Lands. This interim injunction also prohibited anyone from interfering with the development on the Lands.
[29] The seminal case on the test to consider whether to grant an interlocutory injunction is RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385 where at page 334, Sopinka and Cory JJ. summarized the test as follows:
First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusing of the remedy pending a decision on the merits.
[30] For the purposes of considering whether to grant an interlocutory injunction, I am also guided by the often-quoted comments of Justice Robert J. Sharpe in his text, Injunctions and Specific Performance, loose-leaf, revision 28 (Canada Law Book, 2019). With respect to interference with property rights, the text notes at para. 4.610:
Under our system of law, property rights are sacrosanct. For that reason, the rules that generally apply to injunctions do not always apply in cases such as this. The balance of convenience and other matters may have to take second place to the sacrosanctity of property rights in matters of trespass.
[31] In the case before me, no person or entity has filed any responding material or otherwise put in an appearance or even expressed a desire to respond or appear. From the media reports that have been filed as exhibits to both Foxgate and Haldimand’s materials it appears that those who have been occupying the Lands and obstructing highways and roads in Haldimand County are content to raise any of their concerns in the media as opposed to the court.
[32] From the media reports, the protestors refer to themselves as “land defenders”. However, the nature of any of their defense to land is to resort to self-help and violence instead of participating in the court process. On both occasions that this matter was in this court, I indicated that anyone who wanted to participate in these proceedings should do so. Otherwise this court can only make decisions on the basis of uncontradicted evidence that is properly placed before it.
[33] When this matter was before me on August 7, 2020, I repeated my urging of those who wanted to participate to respond within these proceedings. In addition, I expressed a willingness to consider an order to have this matter case managed by the Regional Senior Justice’s office pursuant to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. This would allow for an opportunity for parties to consult and make efforts to settle. No one has come forward in order to participate in this hearing by responding or invoking this rule.
Consultation
[34] The matter before me is factually similar to the circumstances that led to the eventual appeal of the injunction granted by Cunningham J. in Frontenac Ventures Corporation v. Ardoch Algonquin First Nation, 2008 ONCA 534, 91 O.R. (3d) 1. The Ontario Court of Appeal outlined those factual circumstances as follows at para. 17:
[17] Frontenac first sought an interim injunction against the AAFN and the Shabot to restrain them from interfering with its exploration program. Frontenac's motion was heard on August 23, 2007. The appellants filed no evidence and made no submissions on this motion. Instead, counsel for the appellants attended and advised the court that they had, respectfully, decided not to participate in the injunction proceedings and had written to the Premier of Ontario to propose negotiations to end the dispute. On August 27, 2007, Thomson J. granted the order sought by Frontenac.
[35] In this case, no one made submissions on behalf of anyone who was conducting themselves in a manner that interfered with Foxgate’s development of the Lands or the unobstructed use of public thoroughfares within Haldimand’s jurisdiction.
[36] As the proceedings moved toward contempt hearings in Frontenac, the parties impacted by the contempt motion and others sought to engage in the court process. The matter was returned to Cunningham A.C.J.S.C., as he then was. With the prompting of Cunningham A.C.J.S.C. and the involvement of Scott J., the parties entered into a process of mediation.
[37] The mediation was not successful. The alleged contemnors were found guilty of contempt and received a sentence. The matter then went to the Court of Appeal.
[38] The Ontario Court of Appeal commented on the issue of the rule of law when considering the rights enshrined in s.35 of the Constitution Act, 1982 at paras 43-46:
[43] In my view, the stage at which the comprehensive and nuanced description of the rule of law expressed in Henco must be considered is when a court is requested by a private party to grant an injunction and where doing so might have an adverse impact on asserted aboriginal and treaty rights affirmed in s. 35 of the Constitution Act, 1982. Such cases demand a careful and sensitive balancing of many important interests in assessing whether to grant the requested injunction and on what terms.
[44] In the present case, as in Henco, the competing interests include the asserted aboriginal rights of the Algonquin First Nations, Frontenac's private interest in pursuing its exploration plan in accordance with valid mining claims and agreements, and respect for the Crown property rights of Ontario.
[45] And how are these interests to be effectively balanced? The answer has been clear for almost 20 years in the jurisprudence of the Supreme Court of Canada – consultation, negotiation, accommodation, and ultimately, reconciliation of aboriginal rights and other important, but at times, conflicting interests: see R. v. Sparrow, 1990 104 (SCC), [1990] 1 S.C.R. 1075; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550; and Mikisew Cree First Nation v. Canada (Minister of Canada Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388. The honour of the Crown requires that it act as a committed participant in the undoubtedly complex process of consultation and reconciliation: Haida Nation, Taku River and Mikisew Cree.
[46] Having regard to the clear line of Supreme Court jurisprudence, from Sparrow to Mikisew, where constitutionally protected aboriginal rights are asserted, injunctions sought by private parties to protect their interests should only be granted where every effort has been made by the court to encourage consultation, negotiation, accommodation and reconciliation among the competing rights and interests. Such is the case even if the affected aboriginal communities choose not to fully participate in the injunction proceedings.
[39] In the case before me, there have been no aboriginal rights asserted. The ability to consult and negotiate with those who have not and will not engage the court process is limited.
[40] Regarding the duty to consult, the Supreme Court of Canada stated in Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 SCR 227, at paras. 29-30:
[29] The duty to consult is triggered “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it”: Haida Nation, at para. 35. The content of the duty varies depending on the context, as it lies on a spectrum of different actions to be taken by the Crown: Haida Nation, at para. 43. An important component of the duty to consult is a requirement that good faith be shown by both the Crown and the Aboriginal people in question: Haida Nation, at para. 42. Both parties must take a reasonable and fair approach in their dealings. The duty does not require that an agreement be reached, nor does it give Aboriginal peoples a veto: Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, at paras. 2 and 22; Haida Nation, at para. 48.
[30] The duty to consult exists to protect the collective rights of Aboriginal peoples. For this reason, it is owed to the Aboriginal group that holds the s. 35 rights, which are collective in nature: Beckman, at para. 35; Woodward, at p. 5-55. But an Aboriginal group can authorize an individual or an organization to represent it for the purpose of asserting its s. 35 rights: see, e.g., Komoyue Heritage Society v. British Columbia (Attorney General), 2006 BCSC 1517, 55 Admin. L.R. (4th) 236.
[41] In Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, the Supreme Court described the scope of the duty to consult at para. 37:
[37] There is a distinction between knowledge sufficient to trigger a duty to consult and, if appropriate, accommodate, and the content or scope of the duty in a particular case. Knowledge of a credible but unproven claim suffices to trigger a duty to consult and accommodate. The content of the duty, however, varies with the circumstances, as discussed more fully below. A dubious or peripheral claim may attract a mere duty of notice, while a stronger claim may attract more stringent duties. The law is capable of differentiating between tenuous claims, claims possessing a strong prima facie case, and established claims. Parties can assess these matters, and if they cannot agree, tribunals and courts can assist. Difficulties associated with the absence of proof and definition of claims are addressed by assigning appropriate content to the duty, not by denying the existence of a duty.
[42] In my view, it is not possible to differentiate between tenuous claims, claims possessing a strong prima facie case and established claims when those resorting to self-help refuse to engage in the court process. The persons who call themselves the “land defenders” have done nothing since, at least, 2015 when Foxgate became the titled owner to the Lands. Nor is there any evidence that they expressed opposition to the proposed plans submitted between 2003 and 2015.
[43] From the time the Foxgate submitted their plans for development of these Lands, the “land defenders” did not express any opposition to the Planning Act processes even when this process was fully open with the proper notices to all interested persons. They did not appeal when the necessary approvals were given. They did not engage with the SNEC when that representative body entered into the “Definitive Agreement”, nor did they attempt to become involved in the archeological investigation.
[44] It was only after this residential development was well underway with approximately 176 homes sold with expectations of closing for those 176 families for November 2020 and very large sums of money had been committed and spent by Foxgate and its agents and contractors did the “land defenders” initiate their resort to self-help and associated violence.
[45] The Supreme Court of Canada in Haida stated at para. 42:
[42] At all stages, good faith on both sides is required. The common thread on the Crown’s part must be “the intention of substantially addressing [Aboriginal] concerns” as they are raised (Delgamuukw, supra, at para. 168), through a meaningful process of consultation. Sharp dealing is not permitted. However, there is no duty to agree; rather, the commitment is to a meaningful process of consultation. As for Aboriginal claimants, they must not frustrate the Crown’s reasonable good faith attempts, nor should they take unreasonable positions to thwart government from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached: see Halfway River First Nation v. British Columbia (Ministry of Forests), 1999 BCCA 470, [1999] 4 C.N.L.R. 1 (B.C.C.A.), at p. 44; Heiltsuk Tribal Council v. British Columbia (Minister of Sustainable Resource Management) (2003), 2003 BCSC 1422, 19 B.C.L.R. (4th) 107 (B.C.S.C.). Mere hard bargaining, however, will not offend an Aboriginal people’s right to be consulted.
[46] If any representative group within the Aboriginal community wants to assert a constitutional right, they must assert it in a manner that is within an accepted process. Resort can be made to the Courts, the Land Claims Tribunal, or direct negotiations with the appropriate level of Government. However, they cannot sit by and refuse to engage in bona fide consultations and legally accepted processes. They cannot resort to civil and potentially criminal behavior in order to achieve their goals.
[47] In the case of the City of Hamilton v. Loucks, 2003 64221 (ON SC), 232 D.L.R. (4th) 362 (Ont. S.C.), Henderson J. was dealing with a group of individuals who had effectively shut down the construction of what is known as the Red Hill Expressway. He stated at para 55:
[55] Lastly, the defendants submit that a certain limited amount of civil disobedience is acceptable in our society as civil disobedience has been one of the cornerstones in the advancement of democracy. Again, this is an attractive argument, but one that is doomed to fail. I accept that historically many good causes have been promoted through the use of civil disobedience, but those who have engaged in such conduct have always been subject to the sanctions of the courts as a consequence. Individuals in our society cannot be allowed to engage in unsanctioned unlawful conduct. If that were allowed there would be little need for any of the laws of this country. All of the citizens of our country must be compelled to obey the law.
[56] If there is any doubt about the assertion that our country is governed by the rule of law it is resolved by the preamble to the Charter that states "Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law". In summary, all of the citizens of Canada are required to obey the law. It is my duty to ensure that each and every person obeys the law. It would be a dereliction of my duty if I were to permit the defendants to shut down the Project by breaking the law, and thereby allow them to circumvent the many assessments and reviews that have been conducted to date.
CIRCUMSANCES AFTER THE FOXGATE INTERIM INJUNCTION ORDER
[48] On August 5, 2020, the OPP caused those occupying the Lands to vacate the Lands pursuant to my interim injunction order of July 30, 2020. Some of the protesters resisted and were arrested.
[49] Shortly after this action by the OPP, multiple protestors who were sympathetic to the those occupying the Lands set up blockades on Argyle Street, the main thoroughfare in Caledonia and the Highway 6 bypass of Caledonia.
[50] Several other fires were set at or near 6th Line in Caledonia. This included setting an excavator on fire. When fire fighters arrived and attempted to put that fire out, they were greeted by protestors throwing rocks at them. The fire fighters were forced to leave out of fear for their safety and were unable to put out the fire.
[51] Unidentified protestors, who also appeared to be in support of the protestors on the Lands, threw truck tires onto the highway along with construction skids and lit them on fire. They fueled the fire with an accelerant and thick black smoke could be seen billowing from the fire site.
[52] The OPP and Haldimand County officials estimated that there were approximately 100 protestors involved.
[53] After the above incidents, Haldimand brought their application and request for an interlocutory injunction preventing anyone from blockading any highway or thoroughfare within the catchment area of Haldimand County. I granted the interim injunction and made it returnable at the same in person hearing as Foxgate’s motion on August 25, 2020 at 10 a.m. at the Superior Court in Brantford.
[54] The very next day after the OPP enforced Foxgate’s interim injunction and removed the protestors, they returned to the site of the Lands and have occupied them ever since. The protestors continue to blockade Argyle St and Highway 6 in Caledonia.
The Application of the RJR MacDonald Test
[55] It is important to point out that the claims of the “land defender”/protestors have not been advanced within these proceedings. In the media reports attached to both the Haldimand action and the Foxgate action, there are numerous references to spokespersons allegedly speaking on behalf of the “land defenders”. The assertion in the media reports by the alleged spokespersons is that this is an issue between sovereign nations. They assert, in the media only, that this land was never ceded by the Haudenosaunee. They assert this as a land claim. It is not a land claim.
[56] I agree with Turnbull J. in Ah’she hodeeheehonto v. Bomberry, 2010 ONSC 3701 when he stated at para 18:
[18] I find that this application has nothing to do with land claims. The ongoing case of Six Nations of the Grand River Band of Indians v. The Attorney General of Canada and her Majesty in Right of Ontario, court File Number 406/95, commenced in Brantford deals with a land claim. In that action, the Six Nations elected Council, on behalf of all of Six Nations, is prosecuting a claim against Canada and Ontario for an accounting of the land and money it alleges is should have received from the Haldimand Proclamation of 1784 and which land was removed be so-called “surrender”. The application before this court deals with trespassing by the applicant on land in which he has no lawful interest.
[57] The case referred to by Turnbull J., Six Nations of the Grand River Band of Indians v. The Attorney General of Canada, has been within the Superior Court since 1995. This case involves multiple and complex land claims issues. In or about 2017 the matter was transferred by order of Morawetz R.S.J., as he then was.
[58] The case management judge, Sanfilippo J., outlined the procedural history of the land claim action in Six Nations of the Grand River Band of Indians v. The Attorney General of Canada, et al, 2018 ONSC 1289, at paras 1-2:
[1] This action was initiated by statement of claim issued on March 7, 1995. The plaintiff, Six Nations of the Grand River Band of Indians, alleges that the defendants, Attorney General of Canada (“Canada”) and Her Majesty the Queen in Right of Ontario (“Ontario”), or their predecessors, breached fiduciary and treaty obligations alleged to be owed and thereby seeks an accounting, declaratory relief, equitable compensation and references in connection with events that largely took place in the 18th and 19th centuries.
[2] The action was initiated in Brantford, Ontario, and was there subject to case management by Justice J.C. Kent. It was transferred to the Superior Court in Toronto, on consent, pursuant to the Order of Regional Senior Justice Morawetz dated November 24, 2017.
[59] Sanfilippo J. then reviewed some of the lengthy history of the matter at paras. 3-8:
[3] On January 3, 2018, a request was made, on consent, for this action to be subject to case management. On January 5, 2018, I was appointed as the case management judge.
[4] The first case management conference was conducted on January 31, 2018 (the “1st CM Conference”).
[5] This action had a lengthy period of active litigation, which resulted in the exchange of numerous affidavits of documents and document lists. In the result, the parties collectively produced over 31,000 documents. The discovery representative of Canada was examined for five days in 2000, both preceded by and followed by extensive motions on discovery issues.
[6] This action was placed in abeyance for a period of more than six years, on consent of all parties, but has since been taken out of abeyance and has entered a stage of renewed, active litigation.
[7] The parties agreed to a discovery plan in March 2016 which incorporated a detailed electronic discovery protocol. By continued use of this discovery plan, the parties are currently engaged in discovery and attempting to narrow factual issues in dispute before trial through a process of detailed requests to admit, supplemented by written discovery.
[8] To date, the plaintiff has delivered eleven requests to admit, of which ten have been answered, while Canada has delivered one request to admit, which has been answered. The plaintiff also delivered to Ontario, in April 2017, an instalment of written questions
[60] Six Nations of the Grand River Band of Indians case involves claims for an accounting and for damages. It does not seek any other interim order to halt any development on lands that may be in the area being disputed in that case. It includes massive amounts of evidence dealing with the extent of the Imperial Crown’s duties, liabilities during the periods prior to confederation, and the extent to which the Government of Canada has assumed any of those duties and responsibilities.
[61] The case also involves evidence that deals with multiple treaties and documents of surrender of lands even before the 1700s.
[62] The above noted cases are cited to show how complicated and cumbersome these cases must be in order to achieve a process that is fair and comprehensive. Having said that, the fundamental goal is to achieve fairness within the recognized court and administrative law processes. As alluded to earlier, the need to engage in various levels of negotiations with the Federal and Provincial Governments are also avenues that must be explored.
[63] Lederer J. is presently dealing with a land claim that asserts title and damages in the case of CREES (EEYOU ISTCHEE) et al v. Canada (Attorney General) et al, 2017 ONSC 3729, [2017] 4 C.N.L.R. 47. Even when there are identified parties seeking a land claim, damages, and possibly s. 35 rights, the complexities are monumental. In the case before Lederer J., he outlines some of the challenges at para. 28:
[28] It is a conundrum. Do we start narrow and allow issues to broaden out as we proceed and they become clearer? Should we start wide open and look to put in limits when the issues are more precisely defined? This is a land claim. It speaks to our effort to find reconciliation. In this situation not only is the court being asked to resolve a dispute between First Nations and the Crown but, at the same time to resolve internecine (“mutually destructive”) disagreements between First Nations. The problem is not made easier by the failure of the two levels of government which are, after all, the defendants in the action and a main player in our effort to find reconciliation, to make any contribution to how it should be resolved.
[64] Regardless of the complexities, when parties resort to the court to assert their claims the court has a duty to ensure its processes are followed, its Orders are obeyed and its processes are fair to everyone.
[65] I have also considered the comments of Arrell, J. in The Corporation of the City of Brantford v. Montour et al, 2010 ONSC 6253, 104 O.R. (3d) 429. Arrell J. was dealing with a request from The City of Brantford for an interim injunction to prevent work stoppages at specific sites within the City. The Respondents in that case caused work stoppages at a number of projects being developed. By the time the matter came before Justices Arrell, the blockade and stoppages at the development sites were escalating to the point of being a daily occurrence with the real threat of violence.
[66] The Respondents, in that case, were principals of what was called the “Haudenosaunee Development Institute” (“HDI”). The Haudenosaunee Confederacy Chiefs had formed the HDI to cause developers to come to them in order to pay fees and make applications for any development in a prescribed area in Brantford. The members of the HDI took the position before Justice Arrell that the lands in question formed part of the Haldimand Tract and were in fact Haudenosaunee lands that were never ceded.
[67] In dealing with the issue of the interim injunction, Justice Arrell stated at para. 51:
[51] I am given further comfort that Ms. Holmes has the preferable opinion by the fact that the Six Nations, despite 25-30 years of archival research on their own, have never elected to commence any legal proceedings against any entity, being either private or government, for the return of this land or title to the land. They did commence a lawsuit in 1995, which has been dormant for the last few years, for compensation. As well they have filed 29 land claims with the federal government for compensation.
[68] No First Nations group or individual has made a land claim within these proceedings. First Nations groups and individuals cannot simply sit on the sidelines after a lengthy legal process has been initiated to advance a subdivision plan, then obstruct the process by asserting various claims in the media and not the courtroom.
[69] In both of the court actions before me there are serious and meritorious questions to be tried.
[70] Haldimand in Action # CV-2000000032-00 and Foxgate in Action # CV-20-32 would both suffer irreparable harm that cannot be compensated in damages.
[71] Foxgate’s timely development of their Lands has been stopped by the actions of the “land defenders”/protestors. They have ignored this court process and ignored the orders of this court. The homes that are sold by the agents and contractors of Foxgate will be delayed and many bona fide purchasers and their families’ lives will be severely impacted.
[72] The reputation of the developers and the development’s future success has been put in jeopardy. Prospective buyers will be extremely wary of purchasing homes and moving to a community where apparent lawlessness would put their families at risk.
Haldimand is faced with protestors who have placed Caledonia and surrounding areas within Haldimand at risk. The community cannot be assured that by-laws and Provincial legislation that directs an orderly process for developments will apply equally to everyone.
[73] The civil and potentially criminal disobedience that is replete in eh evidence before me places that whole community in peril. Black burning tire smoke billowing into the air is as much a toxic health risk as it is a toxic emotional and psychological risk to the Haldimand community.
[74] Residents and businesses in the Haldimand community are seriously and negatively impacted by the actions of these protestors. People cannot have the regular use and enjoyment of their homes with roads and highways blocked. Their health and safety is in jeopardy when lawless activity is allowed to prevail.
[75] People who have businesses in the community are impacted with individuals finding it extremely inconvenient to travel given the blockades and other disruptions. Putting it bluntly, very few people want to go into a community and do business when they have reason to believe that not only would it be inconvenient to do so, but also their own health and safety would be at risk.
[76] There is no award of damages that could adequately compensate either Haldimand or Foxgate in the cases before me.
[77] Open and flagrant disregard for regular order, laws and orders of this court cannot be condoned or tolerated. If the rule of law is not upheld in the circumstances of this case, chaos, mayhem and anarchy would prevail. This is not the way our Canadian society is. Central to our values is the rule of law. It applies to everyone, without exception.
[78] I find that the RJR-MacDonald test has been met in both the Haldimand case and the Foxgate case.
[79] Each of the requested injunctions shall issue in accordance with the draft order submitted.
Date: August 21, 2020 R John Harper
Plaintiff
- and -
JANE DOE, JOHN DOE, or any agent or person acting under their instructions, and other persons unknown, and THE CORPORATION OF HALDIMAND COUNTY
Defendants
ENDORSEMENT
RJN
Released: