ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
FOXGATE DEVELOPMENTS INC.
Plaintiff (Applicant)
- 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)
Counsel:
P. DeMelo, Counsel for the Plaintiff
HEARD: October 9, 2020
ENDORSEMENT
THE HONOURABLE JUSTICE r. j. harper
RULING ON THE REQUEST FOR PERMANENT INJUNCTION SOUGHT BY FOXGATE AND HALDIMAND
Issue
Whether the Court should exercise its inherent jurisdiction to control its process to prohibit the defendants, Skylar Williams and unknown defendants from further participation in these proceedings.
[1]. For the purpose of these reasons, I will highlight some of the relevant background. Much of the history has been set out in my decision on the interlocutory injunction that is reported as Foxgate Developments Inc. v. Doe et al, 2020 ONSC 5038.
The Title to the Subject Lands
[2]. With respect to the subject lands, Foxgate became the registered owner of the property known as 1535 McKenzie Road, Haldimand County, on September 9th, 2015. These lands consist of approximately 25 acres.
[3]. The parcel register of the land registry shows that Foxgate, through a related number company, acquired the subject lands for the purchase price of approximately $4 million.
[4]. The title abstract shows that, at the time of the purchase by Foxgate, there were no claims or encumbrances on the title except certain hydro and utility rights.
[5]. The title that was searched by the lawyers for Foxgate at the time was traced back to an original Crown patent for these lands. The lands were granted to Thomas Nichols on November 21st, 1853, and recorded in the Province of Canada archives, December 3rd, 1853.
[6]. There has never been any judicial proceeding commenced by a person or any person or entity to set aside the original Crown grant that transferred the subject lands to Mr. Nichols in 1853, nor is there any claim registered on title whereby any Indigenous group has claimed an interest in the lands.
[7]. The inaction in the form of absence of the commencement of legal proceedings to set aside the Crown grant includes inaction by the Six Nations Elected Council and Haudenosaunee Confederacy Chiefs. The Six Nations elected council is part of a claim that was instituted in 1995 and presently is transferred to Toronto and will be dealt with in 2022, but that claim deals with an accounting for damages.
The Development Process
[8]. After a public process, pursuant to the Planning Act, that included these subject lands, there was an approval for a residential development. That Planning Act application was with a different developer and started in 2003. That process, of necessity, under the Planning Act requires numerous publications of notices of applications and zoning changes. That development did not proceed.
[9]. However, Foxgate obtained the subject lands in 2015. They embarked upon another public process pursuant to the Planning Act and obtained a draft plan approval to develop the subject lands for the construction of 218 residential units. Since that approval, they have sold approximately 118 of those units.
[10]. As part of the public process to obtain the draft plan approval, all the necessary applications were circulated to the Six Nations of the Grand River, as well as the Mississauga of the New Credit.
[11]. After this circulation, no Indigenous groups provided any input or opposition in any of the formal proceedings provided under the Planning Act.
[12]. After receiving all of the necessary approvals and given the approval of the draft plan of subdivision, Foxgate and their building partners undertook to sell units and prepare the subdivision for construction.
[13]. It was not until July 20th, 2020, that opposition to the development was expressed in the form of multiple individuals coming onto the subject lands and preventing the construction work from proceeding.
[14]. The individuals objecting to the development did not resort to any legal process. Instead, they went the route of self-help, trespass and damage to property of the contractors.
[15]. Heavy equipment intended to connect services such as sewage, water, utilities were spray-painted. A large construction bin was spray painted with the words “Land Back Lane 1492”.
[16]. Contractors were prevented from doing their work and construction had to come to a complete halt. Contractors were prevented from even attending on the land. The persons objecting to the development took occupation of the lands and since that time no construction by Foxgate or their building partners has been allowed to proceed.
This Litigation Chronology
[17]. With respect to this litigation, Foxgate brought an action in the Superior Court by way of Notice of Action. At the same time, they sought an interim ex-parte injunction against persons who had not been identified at that time. They were added as respondents as John Doe and Jane Doe.
[18]. Foxgate was granted an interim injunction on July 30th, 2020. As a term of the interim injunction, the terms of service of the particular injunction order was specified and that service as specified in the order was carried out in accordance with the terms of the order.
[19]. Subsequent hearings on the interlocutory injunctions asking for an extension of the prohibition that prevents persons from attending on the subject lands and prohibiting persons from interfering with Foxgate and their building partners’ construction activities resulted in an extension of the injunctions on August the 7th and August the 25th.
[20]. In addition, Haldimand County brought their own application for permanent and interlocutory injunction to prevent persons from obstructing multiple thoroughfares within Haldimand County jurisdiction. These injunctions were also granted with specific terms of service that were later carried out.
[21]. The Haldimand County application and interlocutory motions for injunctions were precipitated by conduct of multiple persons, not only defying the Foxgate injunctions but taking to the streets with destructive and frightening behaviour that damaged property, prevented use of public highways and roads and caused injury to numerous people including first responders, the police and the fire department.
[22]. Groups that I find to be lawless protestors resorted to rock throwing. They threw rocks at firefighters who were called to put out fires. This conduct put into peril and at-risk members of the public. Their actions prevented these firefighters from doing their job.
[23]. Protestors threw porta-potties and other debris, as well as large tractor tires from overpasses onto the highway. They then lit those huge tires on fire. Toxic black smoke from those tires bellowed into the air placing the public at risk again for physical harm.
[24]. Protestors blocked the rail lines. CN obtained their own injunction which remains in force today. According to the affidavit filed on behalf of the OPP, a rail switch on the CN rail line was also damaged during this period.
[25]. All of this activity occurred on or about August the 5th, 2020. It was on that date that the OPP attended at the subject lands in order to enforce the injunction order of this Court. After the protestors were removed from the subject lands and the OPP left the area to protect the roadways, the protestors returned to the subject lands and they have never left.
[26]. Skyler Williams was added as a party to these proceedings on August 25th, 2020. At the hearing to add him as a party, video recordings were filed in evidence of Skyler Williams posting on various social medias in his own accounts. One of the postings showed Skyler Williams talking on his own video stating that he had returned to Land Back Lane and they will never leave.
[27]. Other evidence was presented to allow me to find that Skyler Williams was the self-proclaimed leader of these protestors.
[28]. Since August the 5th, 2020, the protestors continue to occupy the subject lands and refuse to allow anyone representing Foxgate or the building partners to attend the property to even do preliminary work in preparation for implementation of the service on the land. This includes protestors refusing to allow workers to mark out where the gas lines would run and may enter onto the property. With the protestors now building structures on the property without having gas lines marked that becomes a further risk to the public safety and harm to the public. Instead, the protestors themselves are building their own structures. I find that conduct their stated intention to remain on the subject lands no matter what this Court orders.
[29]. In what was unprecedented to me in any case that I have considered, Skyler Williams, a named party in this action, told this Court at this hearing that he is contempt of the Court’s order and he is in contempt willingly. He also stated that his contempt will continue no matter what the Court orders. That is an astounding proposition.
[30]. Since August the 5th, 2020 re: occupation of the subject lands, the protestors started to have get-togethers that amounted to playing games on the land and having potluck dinners and they escalated into music concerts. Many of the get-togethers have a component of fund raising for their legal defence and for their building fund.
[31]. Skyler Williams’ social media posts demonstrate that he is personally encouraging fund raising for the legal defence fund and the building fund. Their legal fund and their building fund on social media pages indicate that thus far, or at least at the time the affidavit was filed in this Court, the legal fund had raised in excess of $150,000 for legal fees to be used for these proceedings.
[32]. On August the 25th, after Skyler Williams was made a party, a lawyer, who I will not identify, indicated that he was on the Zoom call and he was representing Skyler Williams, or he was about to be retained. However, counsel who participated on behalf of Skylar Williams indicated at that hearing on August 25, 2020, that he would receive the Court documents and his responding material would be before the Court shortly.
[33]. Counsel for Foxgate, Mr. DeMelo, stated that he had received an email from that lawyer who confirmed that he had been retained to represent Mr. Williams. Mr. DeMelo sent that counsel all of the materials that have been filed in this case and copies of my order setting out the timelines for Mr. Williams to file his responding material.
[34]. One day before that timeline was to elapse, Mr. Williams contacted Mr. DeMelo and told him that he was now going to act for himself and he needed one week of an extension in order to file his materials. Mr. DeMelo granted that.
[35]. On September 18th, Skyler Williams filed an unsworn affidavit in his name that also contained approximately 200 pages of attached documents that were not authenticated documents in any way and contained what purportedly was authoritative articles that were in no way found by the Court to be authoritative.
[36]. Foxgate’s counsel submits that the attachments are reading material that were prepared by the Six Nations of the Grand River in an ongoing litigation with the federal government for an accounting of monies that are claimed to be owed to Six Nations by the Crown.
[37]. Skyler Williams’ affidavit filed with this Court started out as follows:
I am a Haudenosaunee man who does not belong before this colonial Court.
I have been unable to find legal representation due to lack of technical understanding of Haudenosaunee legal principles amongst practicing lawyers due to the high cost of legal fees and complexities of the long-standing and unaddressed land issues of Six Nations. As a result, I will be representing myself.
[38]. He made those statements after he had raised significant amounts of money representing that he had retained lawyers to act in these proceedings.
[39]. Courts must follow a process that is fair and is expeditious to all of the litigants consistent with the complexities of the issues. The rules apply to everyone, litigants with counsel and litigants without counsel.
[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.
[41]. Neither Skyler Williams nor any of the defendants he leads came to this Court early on in order to assert any land claim or to object at any stage of the five-year process that Foxgate undertook.
[42]. Skyler Williams is a self-proclaimed leader of these persons who are occupying the subject lands. For over two months, Skyler Williams remained in the shadows while at the same time participating in his own determination of what justice should be. It was not until he was named a party that he came forward in these proceedings. He and his supporters raised a lot of money in order to participate. His legal fund solicitation including many assertions that counsel have already been retained and they were defending this action. He now comes to Court without counsel stating that he has no lawyer because of the complexities of the Haudenosaunee legal principles. He also asserts that he cannot afford a lawyer despite raising all those funds.
[43]. Most importantly, Skyler Williams comes to this Court while in open and obvious defiance of the process and orders of this Court. This is what drives any decisions that he is making. Defiance of the Court process. Defiance of the Court orders. In coming to Court, he has not followed the rules and despite his major participation in self-help occupation of the subject lands for over two months, he is only now seeking to involve the Attorney General of Canada and Ontario in a constitutional question. All the while, the one litigant Foxgate, the plaintiff, has followed all the procedures but that litigant is frozen by the conduct of the defendants and their continued defiance of the Court orders. Members of the public and their families should be able to rely on the open and public process that Foxgate had to follow when they committed to purchasing these lands. Now their lives, and many others, are on hold. Their lives and the lives of their family are on hold because of the self-help and destructive behaviour of the occupants and protestors led by Skyler Williams.
[44]. One of the fundamental precepts of our society is the need to have a judiciary that is independent and only makes decisions based only on the law and on the evidence in this courtroom. Courts cannot and should not make decisions that are based on outside influences and I refuse to do so.
[45]. The affidavit and the oral evidence of Chief Superintendent Cain of the OPP has made it clear that there is a reasonable inference that can be drawn by me and that if Skyler Williams and his supporters do not like the Court outcomes, they will resort to escalating violence. Superintendent Cain gives examples in his affidavit of potential violence that are quite frightening. As a society, we cannot be held hostage to violence and threats of violence.
[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.
[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.
The Law and Analysis
[48]. With respect to the law, of a Courts inherent power to ensure its process is not abused, I make reference to two cases that are the leading cases on abuse of process. In Toronto City v. CUPE Local 79, 2003 SCC 63, [2003] 3 SCR 77 at paragraph 35:
“Judges have an inherent and residual discretion to prevent an abuse of the court’s process. This concept of abuse of process was described at common law as proceedings “unfair to the point that they are contrary to the interest of justice.””
[49]. Justice McLachlin in R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, at page 1007 stated the following:
“…abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community’s sense of fair play and decency. The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice.”
[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.
[52]. This matter will be adjourned to October 22nd at 10 a.m. to determine the next steps.
[53]. The Foxgate and Haldimand injunctions are continued.
Date: October 16, 2020
R John Harper
